(PDF) Amendments to UCC Article 9 • Oklahoma Family Wealth ... · 9:00 Form Changes Effective December 2015 Brian Huckabee, Huckabee & Huckabee, Inc. ... Amendments to UCC Article 9 - PDFSLIDE.NET (2024)

Volume 86 u No. 30 u Nov. 21, 2015


Amendments to UCC Article 9 • Oklahoma Family Wealth Preservation Trust ActElectronic Commerce and Incorporation by Reference in Contract Law

Due Process in Tax Sales • Annual Meeting Highlights

Program Planner/Moderator: Charles Greenough, McAfee & Taft

This seminar will focus on a broad range of cutting-edge business and consumer bankruptcy-related legal topics.

Co-sponsored by the OBA Bankruptcy and Reorganization Section

DEC. 3 & 4, 2015Oklahoma Bar Center 1901 N. Lincoln Blvd.Oklahoma City, OK

30th Annual Advanced Bankruptcy Seminar

UnHappy Days are Here Again?

Thursday, Dec. 3 Program8:30 a.m. Registration and Continental Breakfast9:00 Form Changes Effective December 2015 Brian Huckabee, Huckabee & Huckabee, Inc.9:50 Break10:00 Peregrine Financial Group Bankruptcy Ira Bodenstein, Shaw Fishman Glantz & Towbin LLC

10:50 BAPCPA 10 Years In – Did Anything Really Change? Panel Discussion: Moderator, Charles Greenough Panelists: Karen Carden Walsh; Roger Everett; Greggory T. Colpitts, The Colpitts Law Firm11:40 Networking lunch (included in all-day registration)12:10 Church Bankruptcies Professor Pamela Foohey, University of Indiana

1:00 Student Loans – How Can You Help Your Client if the Debt is Non-Dischargeable? Natalie Eness, ECMC Mac D. Finlayson, Eller & Detrich1:50 Break2:00 2015 Recent Developments: Sid & Sam Show 2015 Sam G. Bratton II, Doerner, Saunders, Daniel & Anderson, and Sidney K. Swinson, Gable & Gotwals3:00 Adjourn

Friday, Dec. 4 Program8:30 a.m. Registration and Continental Breakfast9:00 State of the State Economy 2015 and Beyond Chad Wilkerson, Vice President, Oklahoma City Branch executive, and regional economist, Federal Reserve Bank of Oklahoma City9:50 Break10:00 Ethics Honorable Terrence Michael, Chief Judge, United States Bankruptcy Court for the Northern District of Oklahoma10:5010:50 Hospital and Other Medical Provider Bankruptcies Judy Hamilton Morse, Crowe & Dunlevy11:40 Networking lunch (included in registration)12:10 Drilling On Anyway Energy Co. Chapter 11 Bankruptcy Part 1 Panel Discussion: Moderator, Charles Greenough; Panelists, Gary McDonald, McDonald, McCann, Metcalf & Carwile; Blaine Schwabe, Gable Gotwals; Bill Wallander, Vinson & Elkins; and Charles Snyder, Trial Attorney Office of the United States Trustee1:00 Drilling On Anyway Energy Co. Chapter 11 Bankruptcy Part 21:50 Break2:00 Judges Panel Honorable Sarah Hall & Honorable Janice Loyd of the United State Bankruptcy Court for the Western District of Oklahoma; Honorable Terrence Michael and Honorable Rasure of the United States Bankruptcy Court for the Northern District of Oklahoma; and Honorable Tom R. Cornish of the United States Bankruptcy Court for the Eastern Dis trict of Oklahoma3:00 Adjourn

CLE CREDIT: This course has been approved by the Oklahoma Bar Associa-tion Mandatory Continuing Legal Education Commission for 12 hours of mandatory CLE credit, including 1 hour of ethics for both days, 6 hours of mandatory CLE credit, including 1 hour of ethics for Thursday, Dec. 3 only, and 6 hours of mandatory CLE credit, including 0 hour of ethics for Friday, Dec. 4 only.

TUITION: $225 (both days); or $150 (one day) for early-bird registrations received with payment at least four, full business days prior to the first semi-nar date; $250 (both days), $175 (one day) for registrations received with payment within four, full business days of the first seminar date. $275 walk-ins (both days) $200 (one day). To receive a $10 discount for the live onsite program, register online http://www.okbar.org/members/CLE. You may also register for the live webcast but no discount is available.



Thursday, Dec. 3 Program

8:30 a.m. Registration and Continental Breakfast9 a.m. Form Changes Effective Dec. 2015 Brian Huckabee, Huckabee & Huckabee Inc.9:50 a.m. Break

10 a.m. Peregrine Financial Group Bankruptcy Ira Bodenstein, Shaw Fishman Glantz & Towbin LLC10:50 a.m. BAPCPA 10 Years In – Did Anything Really Change? Panel Discussion: Moderator, Charles Greenough Panelists: Karen Carden Walsh, Roger Everett, Greggory

T. Colpitts, The Colpitts Law Firm11:40 a.m. Networking lunch (included in all-day registration)12:10 p.m. Church Bankruptcies Professor Pamela Foohey, University of Indiana1 p.m. Student Loans – How Can You Help Your Client if the

Debt is Non-Dischargeable Natalie Eness, EC MC Mac D. Finlayson, Eller & Detrich1:50 p.m. Break2 p.m. 2015 Recent Developments: Sid & Sam Show 2015 Sam G. Bratton II, Doerner, Saunders, Daniel & Anderson,

and Sidney K. Swinson, Gable & Gotwals3 p.m. Adjourn

Friday, Dec. 4 Program

8:30 a.m. Registration and Continental Breakfast9 a.m. State of the State Economy 2015 and Beyond Chad Wilkerson, Vice President, Oklahoma City branch

executive and regional economist, Federal Reserve Bank of Oklahoma City

9:50 a.m. Break10 a.m. Ethics Honorable Terrence Michael, Chief Judge, United States

Bankruptcy Court of the Northern District of Oklahoma10:50 a.m. Hospital and Other Medical Provider Bankruptcies Judy Hamilton Morse, Crowe & Dunlevy11:40 a.m. Networking lunch (included in registration)12:10 p.m. Drilling on Anyway Energy Co. Chapter 11 Bankruptcy

Part 1 Panel Discussion: Moderator, Charles Greenough;

Panelists: Gary McDonald, McDonald, McCann, Metcalf & Carwile; Blaine Schwabe, Gable Gotwals; Bill Wallander, Vinson & Elkins; and Charles Snyder, Trial Attorney Office of the United States Trustee

1 p.m. Drilling on Anyway Energy Co. Chapter 11 Bankruptcy Part 2

1:50 p.m. Break2 p.m. Judges Panel Honorable Sarah Hall & Honorable Janice Loyd of the

United States Bankruptcy Court for the Western District of Oklahoma; Honorable Terrence Michael and Honorable Dana Rasure of the United States Bankruptcy Court for the Northern District of Oklahoma; and Honorable Tom R. Cornish of the United States Bankruptcy Court for the Eastern District of Oklahoma

3 p.m. Adjourn

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2313

Immigration Attorneys

Call us 405.528.2222 www.farzaneh.com

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2315

Plus2338 Financial Institutions and Commercial Law Section Note: Oklahoma Enacts 2010 Amendments to UCC Article 9

By Alvin C. Harrell and Fred H. Miller

2342 Oklahoma’s Family Wealth Preservation Trust: Now More Than Ever

By Philip R. Feist

2346 Due Process in Tax Sales By Ashley Warshell and Terrell Monks

2351 Electronic Commerce and Incorporation by Reference in Contract Law

By Alvin C. Harrell

2359 Annual Meeting Highlights

Features 2318 Lawyers in Leadership:

Jari Askins

David Boren

Gary Clark

Mark Hammons

V. Burns Hargis

Jason Hitch

J. Clifford Hudson

Natalie Shirley

Lt. Gen. Harry M. Wyatt III

contentsNov. 21, 2015 • Vol. 86 • No. 30

Theme: Lawyers in Leadership

Editor: Melissa DeLacerda

pg. 2346Due Process in

Tax Sales

pg.2351 Electronic Commerce

DePartments2316 From the President 2366 From the Executive Director 2367 Editorial Calendar2368 Law Practice Tips 2371 Ethics & Professional Responsibility 2373 OBA Board of Governors Actions2377 Oklahoma Bar Foundation News2380 Young Lawyers Division2382 Calendar 2384 For Your Information2387 Bench and Bar Briefs2389 In Memoriam2393 What’s Online2400 The Back Page

2316 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

Earlier this month, the Oklahoma House of Representa-tives scheduled several interim studies intended to address issues affecting all Oklahomans. No doubt, these studies foreshadow sub-jects that will be addressed in the upcoming session of the Legisla-ture to commence in February 2016. Having said that, as lawyers we should pay particularly close attention to one interim study that was conducted — Interim Study H15-121 to address the pro-fessed need for “judicial reform.”

The detailed justification for the study included, among others, assertions that the courts have “stricken several enactments of the Legislature without just cause,” through “actions that constitute an abuse of power, judicial tyranny, usurpation of the role of the Legislature and legislating from the bench,” including among others, abortion. According to the request, part of the prob-lem “is that the judicial selection process in Oklahoma is tilted sharply toward the law-yer’s special interest group, the Oklahoma Bar Association (OBA).”

Branding the Oklahoma Bar Association as a “special interest group” is, for lack of a better term, rather laugh-able. To suggest that our association represents one unified “inter-est” flies in the face of reality; the reality that our membership runs the broad gamut of the political spectrum. Perhaps the best evidence

of this reality is the fact that the legislator call-ing for this interim study is one of our own members! I am confident that there are those among us who hold a different view.

Predictably, Interim Study H15-121 will prompt legislative proposals in the next ses-sion. Action that we as members of the third co-equal branch of government have a sworn duty to engage with to ensure that any pro-posed changes, by whomever and for what-ever reason, do not undermine the way we govern ourselves, which includes the consti-tutional guarantee that all citizens have access to fair and impartial courts. If protecting the public’s right to a fair trial is a “special inter-est,” then so be it.

We are not alone. It is evident that protecting this fundamental constitu-tional structure matters as much to non-lawyers. DRI, the self-described “lead-ing organization of defense attorneys

and in-house counsel,” (www.dri.org) last month released its Fourth Annual National Poll on the Civil Justice System showing that a large majority of Americans, across more than 10 demo-graphic categories, oppose legislative or executive inter-ference intended to influence the decisions of the courts.

Among registered voters, the poll found that 68 percent oppose any attempt to reduce court funding by state legis-lators because of unhappi-ness with a court decision; opposition that is bipartisan

(Democrats 71 percent; Republicans 63 percent, Independents 69 percent). Like-wise, voters oppose other forms of retal-iation as well. Sixty percent would oppose action by legislators to limit the court’s ability to rule on certain issues, and 55 percent oppose efforts to remove judges over disagreement with court decisions.

Regardless of your position on the need for Interim Study H15-121, I hope you will find time to let your local legis-lators know how you feel. Let them know that as lawyers our only special interest is in continued access to fair and impartial justice for all citizens, not guaranteed outcomes for a select few brought about by threats of retaliatory legislative action.

To read President Poarch’s letter to the editor on this topic sent to newspapers statewide, go to www.okbar.org.


By David Poarch

If protecting the public’s right to a

fair trial is a “special

interest,” then so be it.

President Poarch practices in Norman.


Judicial ‘Reform’ Study Foretells Future Legislative Actions

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2317

tHe OKlaHOma Bar JOurnal is a publication of the Oklahoma Bar Associa-tion. All rights reserved. Copyright© 2015 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, Board of Editors or staff. Although advertising copy is reviewed, no endorsem*nt of any product or service offered by any advertisem*nt is intended or implied by publication. Advertisers are solely responsible for the content of their ads, and the OBA reserves the right to edit or reject any advertising copy for any reason.

Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. Information about submissions can be found at www.okbar.org.

Bar Center staFF

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Manni Arzola, Gary Berger, Debbie Brink, Laura Brown, Emily Buchanan, Tanner Condley, Cheryl Corey, Nickie Day, Ben Douglas, Dieadra Florence, Johnny Marie Floyd, Matt Gayle, Marley Harris, Brandon Haynie, Suzi Hendrix, Misty Hill, Debra Jenkins, Durrel Lattimore, Mackenzie McDaniel, Renee Montgomery, Sharon Orth, Lori Rasmussen, Wanda F. Reece, Tracy Sanders, Mark Schneidewent, Jan Thompson, Krystal Willis & Roberta YarbroughOklahoma Bar Association 405-416-7000 Toll Free 800-522-8065FAX 405-416-7001 Continuing Legal Education 405-416-7029 Ethics Counsel 405-416-7055General Counsel 405-416-7007Law-related Education 405-416-7005Lawyers Helping Lawyers 800-364-7886Mgmt. Assistance Program 405-416-7008 Mandatory CLE 405-416-7009 OBJ & Communications 405-416-7004 Board of Bar Examiners 405-416-7075Oklahoma Bar Foundation 405-416-7070


Volume 86 u No. 30 u Nov. 21, 2015

The Oklahoma Bar Journal (ISSN 0030-1655) is published three times a month in January, February, March, April, May, August, September, October November and December and bimonthly in June and July by the Oklahoma Bar Association, 1901 N. Lincoln Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage paid at Oklahoma City, Okla.

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homa City; GARVIN ISAACS JR., President-Elect, Oklahoma City; RENÉE DEMOSS, Immediate Past President, Tulsa; ROBERT D. GIFFORD II, Oklahoma City; JAMES R. GOTWALS, Tulsa; JAMES R. HICKS, Tulsa; DOUGLAS L. JACKSON, Enid; JOHN W. KINSLOW, Lawton; RICKEY J. KNIGHTON II, Norman; JAMES R. MARSHALL, Shawnee; SONJA R. PORTER, Oklahoma City; KEVIN T. SAIN, Idabel; RICHARD STEVENS, Norman; ROY D. TUCKER, Muskogee; JOHN M. WEEDN, Miami; LEANNE MCGILL, Edmond, Chairperson, OBA Young Lawyers Division


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MARK RAMSEY, Claremore



2318 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

Among our peers, and even among nonlawyers, it is widely acknowledged that service and leadership are core values of the legal profession. Many of us can relate to the notion that

service beyond self and a willingness to contribute to the greater good in some way pointed us in the direction of law school. As a result, the legal profession is well represented at all levels of leadership. In Oklahoma from the beginning, lawyers have served as governors, state legislators, judges, prosecutors, general counsel, law firm managing partners, heads of corporate, energy, banking, government and nonprofit organizations. And we continue to do so.

This feature article highlights a few of the many Oklahoma Bar Association members who have distinguished themselves as leaders outside the practice of law. They share how valuable their legal education has been — and their secrets of success, which can be used as inspiration for other lawyers to become leaders.

— David Poarch, OBA President

Lawyers in Leadership

Jari AskinsAdministrative Office of the Courts Administrative Director

The red dirt of southwestern Oklahoma is seemingly embedded in my DNA. I grew up in Duncan and still

have a home there. It is where I learned to work hard, dream a little, have faith and care about my community. My parents were very civic-minded. They taught my brother, sister and me that it is important to care about what happens to other people. Dad was a businessman who valued honesty, integrity and a “customer-first” attitude. Mother was a volunteer leader with several local and statewide organizations. All their lives, they modeled for us how to give back to our community. Dad taught us the work ethic that all three of us have to this day and that same work ethic is now emerging in our next generation, as well. Both of my parents instilled in us the lesson that giving back always matters.

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2319

Law school was never my plan. Two years after college, I decided to study law simply because I wanted to learn more. When speaking with students, I often share a favorite quote from Abraham Lincoln, “I will study and get ready and perhaps some-day my chance will come.” Taking chances I never imagined led to a career I never dreamed. My family’s business is in the land title industry, so I began my practice in oil and gas law. That path changed after I accepted appointment as special judge for Stephens County. Serving on the bench real-ly is where I developed the desire to become a legislator – to run for state representative. While writing or debating legislation, I relied upon my judicial experience to con-sider how new laws would be implemented and interpreted.

My legal background has helped me at every stage of my career. I learned to analyze situations and resolve issues whether it was the application of statutes or agency policies or government regulations. Those skills were valuable as I worked to understand the needs of my constituents and to assist in finding the resources they sought. Returning to public service this past year at the Pardon and Parole Board and the Department of Human Services allowed me to utilize those skills again in addressing problems from financial shortfall to children in crisis.

Good lawyers are good communicators. Communi-cation is fundamental to building trust and building a team. Without support, it is difficult for anyone to achieve success as a leader. No one can do it alone. And now my career has come full circle. With the opportunity to serve as administrative director of the courts, I am once again working with Oklahoma judges, court clerks and court reporters.

My legal background has helped me at every stage of my

career. I learned to analyze situations and resolve issues

whether it was the application of statutes or agency policies or government regulations.

What tips would you give someone wanting to develop their leadership skills?

Leadership takes practice, prac-tice, practice. The OBA Leadership Academy, Young Lawyers Division and OBA committees offer numer-ous opportunities to become involved and learn or enhance skills that will benefit an individual on any career path.

What advantage does your legal background give you in your current leadership role?

Law school required critical think-ing, analysis of difficult (often emotional) situations and problem solving, which helped equip me for diverse roles in public service.

What are the traits of an effective leader?

Integrity and dependability are more important than any title or leadership position. My favorite

leaders are good communicators who are willing to listen to and accept ideas from different layers within the organization. They build strong teams and have the self-confidence to recognize that strengths are best spread among several, not vested in a few.

To what would you attribute your success as a leader?

I have had help from a lot of other people. My success is truly because of the people who were willing to give me a chance,

Jari Askins at her desk in the AOC office, located in the Oklahoma Judicial Center in Oklahoma City.

2320 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

whether it was by appointment as a judge or by election to office. I tried to respect their trust by working hard not to let them down.

Why would you encourage other lawyers to get involved in leadership?

Lawyers learn to advocate for dif-ferent positions in a legal setting. Those skills are important in teaching a younger generation how to express differing opinions

in a respectful manner. Lawyers can exercise the same advocacy in civic organizations and volunteer service projects and, perhaps, keep the art of civil discourse from disappearing.

What was your first leadership role or how did you first become involved in leadership?

My second-grade teacher picked me as a team leader in class for a math exercise. By giving me the responsibility of choosing the

members of my team, she instilled confidence in me that I could be a leader of my classmates. The first time I recall making signs and ask-ing for votes, I was 11 years old. After winning my age division, I had to make a short talk each week in front of a group of 50-55 young girls. I learned about the expectation and responsibility to motivate others and to lead by example.

David BorenOU President

I have not practiced law in more than 40 years, but every day I am grateful for my legal education. Throughout my

time as a state legislator, governor, U.S. senator and now as a university president, I have made use of what I learned in law school.

In every situation it has been helpful to try to “think like a lawyer.” Law schools give their students that ability as we go through the rigors of learning case law, procedure, legal prin-ciples and argumentation. “Thinking like a lawyer” means putting facts into a conceptual and analytical framework. It means carefully weighing the alternatives. It means setting pri-orities and recognizing risks. It means placing today’s situa-

tion in an historical context. It also means appropriately documenting a course of action and “making a record.” Those learned skills are applicable in making nearly every major decision which the leaders of any organization must make.

I did practice law as a sole practi-tioner in Seminole and Wewoka at least part-time for six years. Coun-seling and representing others in a

President David Boren with students on the OU campus in Norman.

Photo Credit: Aaron Snow

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2321

At the university, legal issues must be faced each day ranging from questions about ‘state action,’ to free speech issues, to the boundaries of disciplinary actions.

myriad of situations was extremely rewarding. After I became governor of Oklahoma, I, of course, ceased to actually practice as a lawyer, and I never returned to the practice.

As a state legislator my legal training was very helpful. When I first entered the Legislature, the staff was very small, and it was sometimes faster to draft my own bills. Obviously, legislative drafting and the ability to interpret and modify pro-posed bills and existing laws was learned in law school. I also was able to draft my own amendments and rapidly make needed changes in the course of a legislative debate.

When I later served in the U.S. Senate, I still sometimes drafted important amendments or bills myself. Once a par- liamentarian ruled one of my amendments “out of order” because it had not been through the bill drafting staff. The top parliamentarian was called, and he ruled that my amendment was “in order” because I had properly drafted it. I silently thanked my law school training. That self-drafted amendment ended up creating the largest educational overseas study pro-gram since the Fulbright Program!

As governor, the ability to analyze legal issues was extremely important. There were issues ranging from the meaning of stat-utes to questions of constitutional authority. Presidents of uni-versities and governors are also often sued in their official capacities, and it is helpful to be able to discuss issues in a shorthand fashion with legal counsels.

At the university, legal issues must be faced each day rang-ing from questions about “state action,” to free speech issues, to the boundaries of disciplinary actions.

Whether it has been in my role as a legislator at the state and federal level or as a governor, or now at the university, virtual-ly every day I have needed to “think like a lawyer.” I will always be grateful to the faculty at the OU College of Law for the knowledge I received from them. Law professors certainly helped shape my future. There is no better preparation for leadership in any sector than the study of law.

What tips would you give someone wanting to develop their leadership skills?

I would read the biographies of great leaders and study their decision-mak-ing. It is crucial to develop a moral compass and have a firm grasp of what is right and wrong. Then, a lead-er must have the courage to do what is right and fear not.

What advantage does your legal background give you in your current leadership role?

The ability to analyze problems in a coherent way and “to think like a law-yer.” One must make the right deci-sion and then “make a record” to demonstrate what has been done and why.

What are traits of an effective leader?

Unselfishness is critically important. Too many so-called “public servants” forget that public service is about service and not about power. Being a true leader requires that the good of the institution or the country is

always put ahead of self-interest. Of course, the ability to think critically, be decisive and give credit to others are also very important.

To what would you attribute your success as a leader?

I have tried to always realize that leadership is a team effort and almost nothing can be achieved by yourself alone.

Why would you encourage other lawyers to get involved in leadership?

Lawyers understand that the rule of law is the glue of our society. As stewards of the law, those with legal training have an obligation to lead.

What was your first leadership role or how did you first become involved in leadership?

I became a leader in student organizations while I was still in school.

2322 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

What tips would you give someone wanting to develop their leadership skills?

There are many books and articles on leadership styles. Understanding the “theory” of leadership may be helpful. But the only way to improve your leadership skills is to get involved in an organization that you believe in so you can devote the time and energy to making a difference while practic-ing and honing your leadership skills as you move up through the ranks.

What advantage does your legal background give you in your current leadership role?

Practicing law is all about solving problems. Getting the facts and elimi-nating the irrelevant information, then researching the controlling laws, reg-ulations, customs and practices to find a solution. I use those same skills daily in seeking ways to resolve the various issues that are presented to me. I have found that I don’t gen-erally see the questions that have easy answers.

Gary ClarkOSU Senior VP and General Counsel

After the first few weeks of law school, I was dismayed to hear so many of my classmates say how much they

“loved” law school. To the contrary, I was completely out of my comfort zone. For the first time in my life, the teachers were not giving us answers, they were just asking questions. How were we to know what to memorize and regurgitate on tests — which by the way now only happened once a semester? There was no way to build up a nice grade average, just a high-stakes test at the end of the semester. The Socratic Method was an entirely new experience for a good many of us.

It was only when we learned that the goal of our law school profes-sors in asking a seem-ingly never-ending series of questions was to teach us how to “think like a lawyer” rather than to help us memorize the “law” (an impossible task), that the fog began to clear.

In the spring of my first year of law school, the movie, The Paper Chase, came out. My wife and I attended. I saw characteristics of some of my professors in Professor Kingsfield and of some of my law school classmates in the movie characters in the study groups. Professor Kingsfield had the line, ”[y]ou come in here with a head full of mush and you leave thinking like a lawyer.” After the movie, my wife disbelievingly asked, “It’s not like that, is it?” Well, yes and no. No professor had called students to the front of the class, handed them a dime for a pay phone and told them to call their mother to come and get them. But there were some professors who seemed to enjoy embarrassing students.

The fear of being embarrassed can be a great motivator. All law students, some faster than others, learn to spot and narrow the real issue to be decided. As Einstein stated, “A problem properly defined is often half solved.” They also learn to sift through the facts and determine which of them are really impor-tant to the resolution of the issue presented as well as those that are merely “red herrings.” Various possible alternative solutions must be considered and evaluated. Lastly, they learn to commu-nicate concisely, whether in writing or orally.

The fear of being embarrassed can be a great motivator. All law students,

some faster than others, learn to spot and narrow

the real issue to be decided.

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2323

What are traits of an effective leader?

Effective leaders are honest and ethi-cal. Leaders care about people and want to leave the world, region, state or community in better shape than it was found. They are passionate about the common goals of the group. They work together to define and refine the realistic goals the group wants to achieve. Leaders don’t worry about who gets the credit, but about the results. They recognize the various talents of the members of the group and seek their input and help in the areas where they can be most effec-tive. A leader makes everyone feel they are an important part of the group’s effort and praises their con-tributions. Leaders are persistent, because success does not always happen immediately or easily. They are prepared for meetings and activi-ties so that the members of the group feel that real progress is being made.

To what would you attribute your success as a leader?

Someone else will have to judge how successful I have been, but I have tried to employ the traits listed above when I have been involved in an orga-nization, whether as a leader or as a member.

Why would you encourage other lawyers to get involved in leadership?

There is a real sense of inner satisfac-tion to have played a role in meeting a group’s goals. It may be that no one will remember, or even know of, your part in some successful project. But you will see little children playing on that new playground equipment, bat-tered spouses staying temporarily in a safe place or simplified discovery rules that save clients considerable expense, and know you were an inte-gral part of the effort that led to this progress.

continued on next page

But law school is not the end of one’s education on how to think like a lawyer. I was fortunate to practice with three different law firms in private practice, learning from exceptional lawyers in each of them. John Athens was an excellent mentor, teaching the value of leaving no stone unturned in discovering the facts and examining various legal theories that might be dispositive of a case. He also taught the absolute necessity of being professional even on the few occasions when the opponent was not. A leader must be open to all ideas, regardless of who suggests it.

Former partners Gary Baker, Craig Hoster, Gary McSpadden and Dana Rasure are all outstanding examples of exceptional law-yers of great intellect and the highest integrity who, in managing a law firm, placed great value on consensus building. Leaders realize that the team won’t be nearly as productive if the members are not “sold” on the solution. A successful leader will ensure that everyone helps set the goals and understands their role in attain-ing those goals.

Lawyers must apply logic as they resolve issues. The value of clean logical thinking was demonstrated regularly by a younger lawyer (and now successful banker), Dee Sokolosky, who is still the most logical thinker I have encountered. Realizing the logical consequences of an action is critical to success. Muddled thinking can sabotage the best-intentioned plan.

Lawyers are taught and expected to have a heightened sense of ethics in all instances. We have all seen examples of temporary success, e.g., Enron, where there is an absence of ethical behavior. Enduring achievements require ethical decisions by the organiza-tion. That starts with the leader. Leaders will never have the respect and support of their team if they lack integrity.

I found the practice of law to be fulfilling. Working with and against good lawyers is rewarding. But clearly the most enjoyable part was helping people with problems or matters they did not have the ability to solve on their own.

Having served on the Board of Regents for Oklahoma State University and the A&M Colleges, I developed a deep passion for the importance of higher education for young, and not so young, students. When the opportunity to serve as a vice president and

Gary Clark presents Professor Hailin Qu with the OSU Eminent Faculty Award. Photo Credit: OSU

2324 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

general counsel for the Oklahoma State University Foundation came my way, I felt so fortunate. Not only could I use my legal training and experience, but I could also be involved in the man-agement of an organization dedicated to raising funds to pro-vide scholarships for students and resources for the university. (There was the side benefit of no more timesheets.)

When, a few years later, soon-to-be OSU President Burns Har-gis (a lawyer by training and experience) shared his vision for OSU and asked me to assist him in making it happen, I over-came my initial concerns about becoming an “administrator/bureaucrat” and gladly joined him. What a great experience it has been — even better than I imagined! Working with a vision-ary and tireless leader is a blessing. Good things are happening at OSU and to be even a small part of that is amazingly gratify-ing. “Thinking like a lawyer” has been invaluable to me daily as I am called upon to resolve issues that can’t be predicted but must be expected.

In short, legal training does an excellent job preparing leaders to have the skills to define problems precisely, to gather the rele-vant facts, to integrate different perspectives and solutions, to forge a consensus on a solution and then to implement it in a way that makes a positive and ethical difference. Isn’t that why most of us went to law school in the first place, to have a fulfill-ing life by making a difference — leaving things better than we found them?

What was your first leadership role or how did you first become involved in leadership?

My first significant leadership role was as a state officer in the FFA, a great organization to develop young leaders. My experience there played a part in my agreeing to serve on the Tulsa County Bar Association Board of Direc-tors years later. Serving on the board, I came to feel that we needed significant improvements in several areas. I thought I could help bring those about by running for president. Fortunately for me, enough members were willing to give me that chance. With the help of a number of lawyers and the bar staff, we were able to accomplish those changes.

Mark HammonsOklahoma Democratic Party Chair

I did my undergraduate work at the University of Oklahoma. After graduating, I was elected to the Oklahoma House of

Representatives. While serving as a House member, I attended Oklahoma City University at night to get my law degree. I briefly associated with a law firm, before starting my own firm in 1997.

Like many starting lawyers, I began with a general practice doing all forms of legal work. Because of my interest in politics and government service, I started representing some of the cities and towns in my home area of Canadian County. My work for city government lead me into employment law and civil rights work — the area where I found my greatest passion.

I developed my private practice focusing on civil rights work and later concentrating on employment discrimination.

In January of this year I decided to run for chairman of the Okla-homa Democratic Party, and I was elected. I sought this position because I felt Oklahoma was moving away from its populist roots. Political party work challenged me to use my legal training in a new way. The first opportunity to do this came shortly after I was

What tips would you give someone wanting to develop their leadership skills?

You become a leader by taking chances and working hard. Both are required. If you play it safe, you can only be a follower. If you don’t work hard, you will not be a

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Political party work challenged me to use my legal training in

a new way.

elected chairman. I was faced with a new set of ethics rules that pro-hibited raising money and distributing campaign material on state-owned or leased property.

I understood that this restriction violated basic free speech rights, and I asked the Oklahoma Ethics Commission to withdraw those rules. When the commission failed to act in a timely manner, it became necessary to file suit setting out why the rules were invalid and should be set aside. We won that battle and reopened traditional forums such as college campus and state parks for political activities.

I expect there will be other opportunities for my legal experience to be helpful in preserving the rights of citizens to participate in elec-


While my experience involved constitutional issues, each attor-ney has experience that directly relates to the rights and interest of citizens. Whether it is under-standing the difficulty of divorce and custody, the necessity of caring for injured citizens or bal-ancing the rights of the public, the victim and the accused in the criminal system, our profes-sion invites us to be leaders. I encourage every attorney to rise to that challenge.

Mark Hammons appears with Mike Turpen, Kevin Ogle and Oklahoma GOP Chair Pam Pollard on the KFOR TV show, “Flashpoint,” a political affairs talk show.

leader even if you offer new ideas and approaches. Part of being a leader is earning respect and that means following up ideas with action.

What advantage does your legal background give you in your current leadership role?

The law trains you to analyze, organize and present facts and ideas in order to persuade a jury. A good leader needs that skill. Fur-thermore, organizing and analyz-ing facts helps a leader to under-stand and avoid bad decisions.

What are the traits of an effective leader?

An effective leader must balance thoughtfulness with action and

inspiration with realism. No task should be too small and no hours should be too long. He or she must lead by action and not just words.

To what would you attribute your success as a leader?

I wouldn’t call myself a success. You keep working to achieve and let others decide how to view the results.

Why would you encourage other lawyers to get involved in leadership?

Our profession is uniquely inter-twined with the judicial branch of government. If we don’t attempt to exercise positive leadership, the entire judicial branch fails. That

would be tragic, because the judicial branch is charged with protecting our most basic rights and freedoms and dispensing jus-tice. When we take our oath as attorneys, we are promising to represent not just our client as individuals but an entire system of justice. Being a leader is part of the job.

What was your first leadership role or how did you first become involved in leadership?

I ran for student council president in high school. I’ve been involved ever since. I want to at least play a role in the decisions that affect me, so what choice do I have?

2326 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

V. Burns HargisOSU President

More than half of America’s presidents

have been lawyers. The oth-ers probably wished for a law degree on many occa-sions. A legal education prepares leaders. It teaches critical thinking, problem solving, justice and fairness, and many other qualities.

A functional society is founded on the rule of law. Every issue facing society has a legal aspect and indi-viduals with the skills and qualities garnered from a legal education have distinct perspec-tive and contributions to offer no matter where their careers take them.

My legal education prepared me well for a diverse career that has included the courtroom but extended to politics, banking, television and now higher education.

A law degree provides a unique education that greatly expands understanding and abilities. The development of ana-lytical skills enhances curiosity and creativity, two things that tend to be pounded out of youngsters as they start in school. Young children must conform rather than ask why. Curiosity and creativity lead to solutions and innovation that your organi-zation and our world need.

As a law student, it may seem the research and fact-finding will never end. The payoff for that work extends well beyond the current project or case. Many of the decisions faced on any job involve complexity, uncertainty and, frankly, they can get

In all my career positions, and particularly as president of Oklahoma

State University, I have learned the most by


strategy to solve the problem. Being able to present the relevant facts and issues in a way that leads to the conclusion you advocate is a key leadership attribute.

What are traits of an effective leader?

• High moral character• Good listener, empathy

• Creative with a high tolerance for mistakes, resilient

• Enthusiastic • Collaborative • Ability to delegate• Positive attitude• Decisive, makes timely

decisions• Can articulate the vision• Sense of humor, especially

self-effacing humor

What tips would you give someone wanting to develop their leadership skills?

I don’t think you can learn to be a leader from a book. Getting involved in organizations whose mission you support is the best way. Being a good follower is the first step. Be the “go-to” person the leader turns to for difficult tasks. Then, volunteering to take on projects, especially when others have not, and working with different kinds of personalities to perform the task will teach you how to successfully lead an effort. You’ll make mistakes but you learn from them.

What advantage does your legal background give you in your current leadership role?

Being a leader requires the ability to persuade others to share and adopt your vision. That’s what lawyers do. They persuade one’s client, the opposing attorney, a judge or a jury to adopt their position. I also think lawyers are trained to analyze a problem logically and develop a

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messy. The research skills learned in law school lead to informed decision making and enhanced value to employers.

Time in law school also sharpens interpersonal and communica-tions skills such as reading comprehension, public speaking and writing. Those qualities add knowledge, instill confidence and help build the relationships that lead to success.

My biggest job as president of Oklahoma State University is interacting with the university’s many stakeholders. That includes faculty and staff who make things work on our campuses and in our classrooms, alumni and donors that provide critical funding, state leaders who oversee our state’s public universities, and most importantly, students who have many choices of where to earn their higher education degree.

When it comes to communication skills, I want to borrow from one of our nation’s most influential lawyers, and the namesake of my Oklahoma City high school, John Marshall. He spoke to what I think is one of the greatest qualities gained from a legal education when he said, “To listen well is as powerful a means of communi-cation and influence as to talk well.”

In all my career positions, and particularly as OSU president, I have learned the most by listening. Listening leads to new ideas, smarter decisions, understanding, compassion and better leadership.

It’s hard to slow down and take the time to truly listen. Every organization has multiple stakeholders. You are wise to give each a voice. Wherever your career takes you, listen.

My undergraduate degree from Oklahoma State University and my law degree from the University of Oklahoma are among my most prized possessions and have led to a career rich with oppor-tunities and fulfillment. I recommend a law degree to anyone determined enough to achieve it.

To what would you attribute your success as a leader?

To the extent I have had success, I have enjoyed taking on difficult tasks and persuading the right people to join in the effort. I try to emulate the traits described above. When I came to the OSU presidency, the creation of the fundraising campaign for $1 bil-lion was a difficult task to be sure. But, it was achieved because the goal was audacious and difficult, but peo-ple were convinced of the benefits that would inure to OSU and bought

(literally) into the effort.

Why would you encourage other lawyers to get involved in leadership?

For two reasons: 1) as noted, lawyers have been trained to persuade others and, as such, are uniquely suited to lead important efforts to a successful conclusion and 2) as David Brooks has written, we all need to think more about our eulogy than our resume. With lawyers leading, good things can happen and the lawyers involved are better for it. Just think of all the lawyers who were leaders in the founding of our nation.

What was your first leadership role or how did you first become involved in leadership?

It would have been in college at OSU. I moved so much before college, I wasn’t anywhere long enough to get into a leadership role. But, my frater-nity pushed me into leadership roles, and I discovered that I enjoyed being involved in trying to make things bet-ter. I’ve done it ever since with mixed success!

President Burns Hargis and students signal “Go Pokes” at freshman convocation in Stillwater. Photo Credit: OSU

2328 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

Jason HitchHitch Enterprises Co-CEO and Chairman of the Board

I started law school with the full expectation of practicing law for a few years in Oklahoma City or elsewhere to gain experi-

ence before heading back to the home company in Guymon. I have a younger brother, and it wasn’t exactly clear that there was room for both of us in my family company. I started law school in the fall of 1994 and graduated in the spring of 1997. At my grand-father’s urging, I took some work with an attorney named Terry Weins, who then had an office on N.W. 59th between N. May and N. Independence Ave. in Oklahoma City.

During the spring of 1996 my grandfather had a heart attack and passed away. At that point my father called me and asked that I change my plans and move home immediately after law

school so that I could start learn-ing the family business from the managerial side of things. That, as they say, changed everything. I started spending more time looking at our industry news and shaping my law studies around what I “thought” I would most need.

I was wrong on a lot of assumptions as to what I would need to know, but it worked out just fine. I also started attending cattlemen’s meetings and partici-pating in committees. I was also taking some computer courses at OU and then teaching classes to company employees, which was great experience at standing up and speaking in front of people.

I changed jobs and went to work at the Oklahoma Supreme

Court in 1996 in the IT Department. Justice Kauger was just start-ing her push to overhaul the case reporting system and modern-ize it away from Westlaw. It was very interesting, and several of my fellow students were there to boot. Later, we would some-times get together and study for the bar exam at lunch and after work.

What tips would you give someone wanting to devel-op their leadership skills?

I would recommend that they get involved in com-munity or social organiza-tions. I find that taking a leadership in these organi-zations is great practice and fantastic networking, not to mention there is a big need and people will overlook any learning errors that are made by volunteers. I also find this is good practice for new attorneys as we tend to be very opinionated and sometimes hard to work with as a consequence of the assertive instruction techniques used in law school. Working with other volunteers who can and will quit can make you learn a bit of politics very quickly and for me retaught me to “listen” to the other people on my committee.

It certainly wasn’t my plan to be leading a company

by 37 but that is what happened. I certainly couldn’t

have done it without my brother and my wife but

the biggest help was a very experienced staff.

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What advantage does your legal background give you in your current leadership role?

I think that the leadership roles I have held since law school have mostly benefited from my level-headedness. I learned early in law school not to let myself be baited or angered by other people if at all possible. Keeping my cool when crap hits the fan is one of the big blessings I received from law school. Other less obvious advantages are some basic knowledge of process and bureaucracy. I also have found that thinking things through before answering was some-thing that I learned in my legal train-ing. Sometimes the right answer is “I don’t know or I need to research that.”

What are traits of an effective leader?

For me and my applications, effective leaders are good listeners but also very good managers of the time you take from other people. As a volunteer leader, everyone is there on their pri-vate time, and leaders need to respect that. I carry that over to my employ-ees. I will listen attentively, but I will also keep things moving and cut off repetitive speakers. I try to set hard

start times and solid stop times. Most successful leaders I have been around are good at managing time, expectations and spend more time taking care of issues before the meet-ing than in the meeting itself.

To what would you attribute your success as a leader?

I had a great leader as a father and grandfather, so I was raised around it to some extent. I also had lots of opportunity by way of volun-teering and, believe me, I learn mostly the hard way by screwing up. I can learn from other people’s mis-takes, but I really remember it if I screw it up myself. Being willing to volunteer

I moved home around Jan. 1, 1998, and went to work in the fami-ly company immediately. I started out doing some legal work on our land files and talking to the oil and gas companies that were operating on our land. I also started working with our managers and supervisors on employee-related issues.

But my biggest learning opportunity was through our member-ship in several industry organizations. In 1997 the furor over the hog industry coming to Oklahoma was at its highest pitch, and I spent a lot of time at the Capitol trying to head off a moratorium. I spoke in front of countless legislators and their staff and commit-tees. It was disheartening to lose the issue, but it was great experi-ence — and I got to see a lot of very good orators and listen to a great deal of political wrangling. The industry group committees are led by volunteers, and at my father’s urging, I volunteered to join committee leadership.

My father became ill with cancer in 2003 and my brother and I started taking over a lot of the company duties. By 2008 he had passed away, and we were running the company. It certainly wasn’t my plan to be leading a company by 37, but that is what happened. I certainly couldn’t have done it without my brother and my wife, but the biggest help was from a very experienced staff. We are a fifth-generation family company, and some of our employees are/were 30 to 40-year employees — some even second and third generation with us.

The company is Hitch Enterprises Inc., which is headquartered in Guymon and has 12 subsidiary corporations. It has approximately 300 employees who work in cattle feed yards, pork production and farming and ranching in addition to managerial and professional staff. The company is a family-owned company wholly owned by my brother and me. It was founded in 1884 as a cattle ranch and farm. I am co-CEO and chairman of the board for the company.

A cowboy at Hitch Enterprises rides through the feed yard looking for sick animals. In the background is the feed mill for the feed yard.

2330 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

and volunteer to lead is a commit-ment, but it has been a great help to me.

Why would you encourage other lawyers to get involved in leadership?

I think it is very rewarding and can lead to great networking for work. I also have found that it gives me some good perspective on how my employees and former

clients got themselves into the messes that we have to work on as attorneys.

What was your first leadership role or how did you first become involved in leadership?

My first adult leadership opportu-nity was in the Guymon Chamber of Commerce and in the beef association committee structure. I was asked to be on the chamber

board and then as the chair right out of law school. The chamber was going through some very dif-ficult reorganization struggles, and I learned a lot. The beef associa-tions were looking for new com-mittee leadership at the same time due to burn out of the prior peo-ple, so I sort of got to jump into a clean slate. I found both to be dif-ficult but very rewarding.

J. Clifford HudsonSonic Corp. Chairman of the Board, President and CEO

After graduating from law school, Leslie, my wife, and I returned to Oklahoma City where we had both grown up.

Leslie and I had met at Northwest Classen High School. She is an epidemiologist and would be working at the University of Okla-homa; I had secured a job with an Oklahoma City law firm with plans to practice corporate and securities law.

It was the early ‘80s though, and the oil bust left everyone scrambling for business. In 1984, I invited an officer of Sonic to a social event, thinking that I might land some Sonic business for the law firm. My guest, however, spent a lot of time telling me about a legal opening at Sonic that I might consider pursuing.

I joined Sonic in March 1984 as an attorney and served in that capacity for the next eight years. While many people might have chosen to keep to that path, my experiences in the first decade of my employment at Sonic prepared me to lead the company.

My eight years as Sonic general counsel afforded me several internal leadership opportunities in the form of leveraged buy-outs in 1986 and 1988 and, ultimately, leading the organization through an IPO in 1990-91. Leading those initiatives exposed me to a depth of the financial and operational aspects of the business that I had less exposure to strictly as legal counsel. I had become a significant stockholder and worked in close concert with other members of senior management and key franchisee leadership.

Promotions to CFO in 1992 and to COO in 1993 left me in good position to become CEO in 1995 when that position opened up. In the quick-service restaurant industry, it’s unusual for a CEO to have served as general counsel. As the leader of a public compa-ny, however, my legal education serves me well every day, and

What tips would you give someone wanting to develop their leadership skills?

Seek individual and perhaps isolated opportunities on short-term projects at work or in the community.

What advantage does your legal background give you in your current leadership role?

As CEO of a publicly traded company, I have better appreciation for the areas of our business that are regulated. From a governance standpoint, my legal education is of benefit when working with the Board of Directors and stockholders.

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the critical analysis developed through a legal education helps me with decision-making continuously.

Governance is a critical competency for any chief executive, and as the leader of a public-traded company, that’s particularly true of my role at Sonic. Working with an independent board of directors, as well as the company’s senior management, means that I utilize my business law education and practice into our work on marketing, operations and human resources in partner-ship with our franchisees every day.

A legal education and relatively short private law practice career prepared me for an exceptional opportunity. My path to CEO of Sonic may not be the most conventional, but law is a growing background for CEOs, and I wouldn’t trade it for another path.

In addition, the critical analysis skills that a legal education develops helps me determine strategies that will or will not work for our business.

What are the traits of an effective leader?

Leaders I admire have:

• A clear sense of the objectives they want to accomplish

• The ability to envision and communi-cate strategies to achieve those objectives

• The ability to instill in others a belief that the path is right, and

• A capacity to implement tactics that achieve those same objectives.

To what would you attribute your success as a leader?

My early engagement as an adolescent in school and community activities gave me a sense of potential I might have to achieve a positive impact. From high school student council to local political campaigns, I began to understand what success looked like by working alongside successful lead-

ers. That success encouraged me to engage even more and ultimately became a cornerstone for my success in business and other community endeavors as an adult.

Why would you encourage other lawyers to get involved in leadership?

I would encourage anyone to get involved in leadership if they have the desire to be a leader.

What was your first leadership role or how did you become involved in leadership?

At the age of 13, I was elected president of the Webster Junior High School Boys Glee Club. This position included the responsibility of conducting the glee club when our choir direc-tor was absent. Leading dozens of teenage boys to harmonize developed my self-concept and taught me how to bring a group together to achieve success. I draw on that experience today.

Cliff Hudson with the crew at the Bricktown Sonic in Oklahoma City.

Photo Credit: Sonic

My eight years as Sonic general counsel afforded me several internal leadership

opportunities in the form of leveraged buyouts in

1986 and 1988 and, ultimately, leading the

organization through an IPO in 1990-91.

2332 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

Natalie ShirleyOSU-OKC President and Oklahoma Secretary of Education and Workplace Development

I wanted to be a lawyer since I was 7 years old,

although I’m not sure why. No one in my family had a college education, and my dad did not even graduate from high school — but with encouragement from my par-ents, it was my dream to be a lawyer.

Once I finished law school, but with no experience in law, I decided to collect as many legal experiences as possible to help me find my legal call-ing. I started with working for a state agency, the Oklahoma Securities Commission, after law school. Next, I went into private practice at a litigation firm. Then, true to the nature of plans, mine changed; I was recruited by a Washington, D.C. group to work in the mutual fund industry.

While in D.C., I learned two things. First, my variety of experi-ences made me appreciate being a lawyer. But second, I found I had a greater interest and aptitude for business. Over time, I was asked to handle fewer legal tasks and increasingly more corporate matters.

So, although the original plan changed, my law degree and truly, my legal education, continues to be useful. My legal education taught me to think critically, parse through large amounts of dense information and repackage that information in order to tell a mean-ingful story. These skills are important for day-to-day business: negotiating, contracts, handling personnel matters and problem-solving.

Additionally, my legal education assists me in establishing a proper relationship with my legal staff. My legal counsel’s job is to understand the law and to recommend courses of action designed to protect the company. My job is to weigh legal counsel’s advice with the needs and interests of the enterprise. As a fellow lawyer, I understand the importance of counsel’s opinion and am respectful of their views, but my own education allows me to place the prop-er weight on counsel’s advice.

Although I am open in this article about my early interest in the law and how my legal education has informed my practices as a

My legal education taught me to think

critically, parse through large amounts of dense

information, and repackage that

information in order to tell a meaningful


What tips would you give someone wanting to develop their leadership skills?

First and foremost, make sure you understand your team’s worldview. You need to understand their perspec-tive, their filters and their personalities. Using this information to inform your leadership is vital.

For example, I once had a team mem-ber who was a highly combative per-son. In order to lead him, I had to go toe-to-toe with him every day on everything. It was what he understood and what he respected. It was not nec-essarily my style, but adaptation by a leader is required to get the best out of his or her team.

I have other team members who work best with praise and yet others who need constant feedback. Understand-ing what employees need in order to get optimal results is essential to effective leadership.

What advantage does your legal background give you in your current leadership role?

As I mentioned earlier, my legal education taught me how to think critically, parse through large amounts

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leader, I have to admit, I’ve not always been so open about my career with casual acquaintances.

For the 20 years I lived in D.C., I flew to Oklahoma regularly. On these flights, I was inevitably asked what I did for a living. Early on, I would say I am a lawyer. Inevitably, I would get responses of pity and endless lawyer jokes. My occupation was an open invitation for a frustrating conversation where I was a captive audience to ceaseless droning and unsolicit-ed advice. Keep in mind, these flights were frequent and always after a long work week.

Very quickly, I learned that the correct answer to “What do you do?” was not “I’m a lawyer.” I needed a snappy answer that would shut down further conversation.

Shortly after that epiphany, I sat next to a gentle-man who asked the inevitable question, “What do you do for a living?”

I looked him in the eye, extended my arms, cracked my knuckles and confidently replied, “I’m a procto-logist.” My chatty seatmate grew quiet, and I was able to work in peace. I continued to use this response for years.

of information and repackage that information in order to tell a meaningful story. I use those skills in my daily interactions with my team, with stakeholders and with the public.

What are traits of an effective leader?

There are many traits, such as good judgment, decisiveness and critical thinking that are essential for effective leadership. An overarching trait that is equally important is flexibility. Leaders must be flexible because they are called on to use different skills at different times.

Sometimes I am the policy leader, and sometimes I am the decision-maker. At other times, I am the chief team builder or cheerleader, or even comforter-in-chief, such as when 9/11 occurred or at the death of an employee’s child.

To what would you attribute your success as a leader?

I look at my leadership skills as a toolbox. Just as different jobs require different tools (you wouldn’t use a hammer if you needed a screwdriver), different issues require different skills. And truthfully, sometimes I use them in rapid succession until I get the result I want.

In my toolbox are tools such as past lessons, humor, candor, emo-tions, the “mommy voice,” timing, experience and most importantly, the ability to choose a great team who balance my weaknesses.

It has been said that Winston Churchill’s greatest victory was over Winston Churchill. I think this is true of all of us. I learned a long time ago when I lost my temper, I lost control of the situation. So, I began to intentionally develop the discipline to control my emotions.

Why would you encourage other lawyers to get involved in leadership?

I wouldn’t. I say this not because lawyers don’t make good leaders;

they do. Lawyers can be leaders because they have the tools, edu-cation and ability to analyze and think critically. However, this doesn’t mean lawyers should be leaders. I say this, because if you are a lawyer, and you haven’t yet become involved in leadership, then leadership likely isn’t your passion. For example, my husband is an entrepreneur. That’s his pas-sion and that’s the way his brain works. I am not an entrepreneur. That’s just not the cloth from which I was cut. The world doesn’t need leaders for leadership’s sake. The world needs just as many entrepreneurs, teachers, students and followers. That said, the world also needs better leaders. So I

President Natalie Shirley with OSU-OKC students and employees on campus in Oklahoma City. Photo Credit: OSU-OKC

2334 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

would say that if you are already involved in leadership, work hard to develop your character, skills and courage to become an even better leader that others deem worthy of following.

What was your first leadership role or how did you first become involved in leadership?

Within weeks of working for a large summer camp in 1977, I was named (at 19 years old) the direc-tor of the swimming program. Campers came to the swimming pool as soon as they arrived so that their swimming level could be evaluated. Those who could swim the length of the pool and back could go water skiing and sailing, but the others had to take swim-ming lessons until they could demonstrate they could swim. The

kids who went to this camp paid to go and generally were middle class kids. As the kids came to the pool, I would ask if they could swim. If they said, “Yes,” I would have them jump into the pool and swim back and forth. If they said, “No” (and many would), I would say “great” and shuffle them off to swimming lessons. This system worked well.

However, in the middle of the summer, we hosted a group of inner city kids for a week, and I did with these kids what I had done with the earlier campers. I asked if they could swim; if they said, “Yes,” I lined them up and had them jump into the pool to demonstrate it. Every child I asked said he or she could swim. I lined them up, they jumped in and almost all of them nearly drowned

before I plucked them from the water.

As a young leader, I was a failure, and where I failed that week was that I didn’t understand the culture of the people I was leading. If I had, I would have understood that there was no way an inner city kid was going to admit they didn’t know how to do something. More-over, I failed to give them a soft place to land – a face-saving option. Those two lessons have informed almost every decision I have made since and every path I have taken – whether I was lead-ing a $500 million dollar company that handled billions of dollars or managing 2,000 people. Those lessons still inform my leadership today.

Lt. Gen. Harry M. Wyatt IIIRetired Air National Guard Director

I graduated from Stillwater High School in 1967 and went to Southern Methodist University in Dallas, Texas, on a football

scholarship. I graduated from SMU in 1971 (four-year plan) with a degree in business administration (and lettered in football and base-ball). The Vietnam War was still going on, and anyone graduating from college became subject to the military draft unless attending medical school or law school. I had been accepted to SMU law school upon graduation, but the law was changed shortly before I graduated from undergraduate school to eliminate the law school deferment from the draft. So upon graduation with my business degree, I became subject to the draft.

I was not real keen on being drafted to serve on the ground in Vietnam, so before I graduated, I began checking out the various military services’ officer commissioning programs and flight schools. I settled on the U.S. Air Force officer commissioning program (Offi-cer Training School or OTS) and went to OTS in San Antonio, Texas, in August 1971. I graduated from OTS in November 1971 as a second lieutenant and went to Undergraduate Pilot Training (UPT) begin-ning in March 1972. I graduated from UPT, earning my pilot’s wings, in January 1973 and began serving my six-year military commitment as a fighter pilot.

I still wanted to attend law school, but the Air Force had no pro-gram for serving as both a pilot and lawyer, so I transferred my mili-

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tary commitment from the U.S. Air Force to the Air National Guard (a reserve component of the U.S. Air Force) in August 1977 and enrolled in the University of Tulsa College of Law in the fall of 1977. I continued to fly with the 138th Fighter Wing, Tulsa ANG part time while I attended law school as a full-time student. I graduated from law school in May 1980, passed the bar and went to work for the Logan and Lowery Law Firm in Vinita while continuing to serve in a part-time status with the Air National Guard as a pilot.

I made partner with Logan and Lowery in 1983 but moved to Stillwater to open a solo practice in 1985. I practiced in Stillwater until January 1998, when Gov. Frank Keating appointed me to fill the associ-ate district judge vacancy in Vinita, Craig County. I contin-ued to serve the ANG as a part-time fighter pilot during this time. I was elected as the associ-ate district judge of Craig County in the elections of 1998 and 2002 while also serving as the commander of the 138 Fighter Wing, Tulsa ANG as a part-timer.

Before I could begin serving my second full-term as a judge, Gov. Keating asked me to serve as the interim and acting adjutant general during the last few months of his second term. Gov. Brad Henry then asked me to continue serving as the adjutant general as he began the first of his two terms as governor in January 2003. I accepted and resigned my judicial position in January 2003. The adjutant general commands the Oklahoma Air National Guard and the Oklahoma Army National Guard when they are not mobilized for service under the president of the United States.

In late 2008, Gov. Henry nominated me to be the director of the National Guard and President George W. Bush accepted Gov. Hen-ry’s nomination. President Bush nominated me for the position and

What tips would you give someone wanting to develop their leadership skills?

I would first ask the person if they really wanted to be a leader and why. If someone could not easily answer those questions, then they would probably struggle in developing their leadership skills and styles. There are many academic courses and books on leadership, and while those are helpful, the best sources for leadership tips are biographies of leaders or articles on leadership written by those leaders.

Secondly, I would suggest that the per-son identify their own personal charac-teristics that could help or contribute to developing their own leadership styles. A leader cannot simply mimic the traits or characteristics of other leaders. They must be comfortable in their own style of leadership. Be yourself, not some-one else.

What advantage does your legal background give you in your current leadership style?

I will try to answer this question as it related to my nonlegal leadership roles as a former Air National Guard Fighter Wing commander, former adjunct general for the state of Oklahoma and as a former director of the Air National Guard.

My legal background consists of law school, 18 years as a private prac-titioner of law and five-plus years as a state court trial judge. This background has taught me that hard work, preparation, listening, caring for my clients, respect of individuals and patience are pre-requisites for the successful prac-tice of law. Combine those traits with an intense desire to win and a hatred to lose, and I think you have the ingredients for a success-ful law practice. Coincidentally, these same traits also make for good leaders in most other occu-pations, including the military. The process of legal thinking and

I had been accepted to SMU law

school upon graduation, but the law was changed shortly before I graduated

from undergraduate school to eliminate the

law school deferment from the draft.

While in military service, Lt. Gen. Bud Wyatt (left) is greeted by Col. John Kent upon his arrival in a C-12 (right) to a F-15 base.

2336 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

what happens when preparation meets opportunity. And, most importantly, by my faith in a loving, compassionate and trusting God.

Why would you encourage other lawyers to get involved in leadership?

Becoming involved in leadership is a person’s recognition that life does not remain status quo — that life and things can be better, but only if there is change for the better; that change will happen in the absence of leadership; that change for the better will only happen with good leadership; and that commitment to leadership is a way to “pay it forward,” if you will. If you real-ly think about what lawyers do, they are leaders. They lead their clients through challenging and traumatic sit-uations to a place of peace, serenity and resolution. They lead juries to a desired verdict. They can even lead doubting judges (I am one now) to correct legal decisions. They can lead organizations to accomplish their stat-ed goals and objectives.

What was your first leadership role or how did you first become involved in leadership?

I was blessed with some pretty good athletic skills, and young athletes tend to gravitate toward the better athletes for leadership. So, I found myself thrust into leadership roles without thinking too much about it. Later, I began making decisions to vie for leadership positions academically and in student government and church. It was often difficult, and I know I made several mistakes along the way, but I felt that I had something to offer. I think it made me a better person, able to think less about what I wanted and more about what was best for the team or the organization. As I matured, the stakes got higher and the organiza-tions got larger and more complex and leadership became more demanding. But through it all, I felt very privileged to lead.

analysis gave me a certain advantage in the military world that many of my peers were missing. Most decisions at the top levels of the Air Force are made by pilots or “operators” who have very little, if any, legal training. A good military leader advocated for his or her people and what better skills to be an advocate than those of a lawyer?

What are the traits of an effective leader?

I think an effective leader 1) has a passion for his/her work and profession, 2) recognizes that leadership is a privilege, 3) cares more about the people he or she leads than themselves, 4) knows that the trust and respect of the people they lead is a fleeting thing and must be earned every day, 5) is fair, 6) gives everyone the respect and dignity that each human being deserves, 7) listens to different points of view, 8) creates a diverse organization that reflects differing points of view, 9) leads by example, 10) trusts

people to do their job, gives people the tools and responsi-bilities to do their job and holds them accountable, 11) creates an atmosphere of collaboration and consensus building, 12) influences people to want to do their job at the highest levels of success, 13) sets a strategic vision, goals and objectives and is comfortable in letting people figure out how to reach those visions, goals and objectives, 14) has a sense of humor and is not afraid to display it, 15) does not take himself/herself too seriously, 16) communi-cates, 17) mentors and devel-ops future leaders better than himself and finally, 18) has fun in doing all of the above.

To what would you attribute your success as a leader?

By faithfully practicing the traits set forth above. By being open and honest with those we serve. By being supported by a loving and faithful family and spouse (it is a team effort, you know). By believing that success is

for promotion to 3-star lieutenant general and the U.S. Congress confirmed my nomination effective Feb. 1, 2009. The term of service was for four years in Washington, D.C. at the Pentagon, and I offi-cially retired from the Air Force on Jan. 31, 2013, after 43 years of military service, 10 years as an active duty member of the Air Force and 33 years as a part-time Air National Guardsman. In early 2014, Judge Gary Maxey announced his retirement at the end of his term from the position as associate district judge of Craig County. I filed for the position that I had held from January 1998 through January 2003 and was elected without opposition. I began serving again as the associate district judge on Jan. 12, 2015.

My decision to give up the traditional practice of law for a mili-tary career, nonlegal in nature, was due to many different factors. First, I never felt that I was “giving up” a career in law. I felt that it was more of a leave of absence, verified by the fact that after my military retirement, I have resumed my traditional practice of law as a state trial court judge. Second, after Sept. 11, 2001, I felt a sense of patriotism and military service, as did many other Americans in all walks of life. Third, two governors had asked for my military service, and it is hard to say “no” to two governors. And fourth, I knew that my legal skills would serve me well in my military leadership endeavors.

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2338 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015


In 2010, the uniform text of Uniform Com-mercial Code (UCC) Article 9 (governing security interests in personal property and fixtures) was revised by the sponsoring orga-nizations.1 Consistent with longstanding prac-tice,2 the 2010 amendments to the uniform text (2010 amendments) were then offered to the states for enact-ment into law. The 2010 amendments essentially repre-sent a fine-tuning of Article 9 as to a handful of problem areas that warranted further clarification after the compre-hensive revisions to the uni-form text in 1998 (with techni-cal amendments in 1999).3


The 1998-1999 revisions to Article 9 rank as probably the most successful uniform law revision project in history, in terms of scope and effect and also in terms of prompt enactment (being enacted in all U.S. jurisdictions within the three-year uniform enactment period).4 As had been the case with other recent UCC revi-sions, Oklahoma was among the first states to enact the 1998-1999 revisions. Given that the 2010 amendments represent relatively modest and uncontroversial changes to the 1998–1999 uniform text, in nearly all instances merely clarifying existing UCC (and Oklahoma) law, many observers expected that Oklahoma would quickly enact the 2010 amendments as well. But that was not to be.

enaCtment OF tHe 2010 amenDments In OKlaHOma

In May 2015, Oklahoma became the last state to enact the 2010 amendments,5 doing so outside the uniform enactment period, mean-ing that there is a gap between the uniform effective date of July 1, 2013, applicable in

most other jurisdictions, and the Nov. 1, 2015, effective date of the 2010 amendments in Oklahoma.6 For issues and transactions arising in this gap period, there is some risk that Oklahoma law may be differ-ent (or at least less clear) than the law of other jurisdictions.7

OKlaHOma COmments

Recognizing the need to address this situation, in 2014 the UCC Committee of the OBA Financial Institutions and Commercial Law Section reconvened its Legislative Review Subcommittee to draft

new (2014) Oklahoma Comments for Oklaho-ma’s UCC Article 9, as published in the Okla-homa Statutes Annotated.8 The result was 2014 Oklahoma Comments for UCC Article 9, pub-lished in the latest hardback edition of the Oklahoma Statutes Annotated for Title 12A, along with the then-current text of Oklahoma Article 9 (which did not include the 2010 amendments). Also included in the hardback edition are: the pre-2010 Official Comments and the earlier Oklahoma Comments address-ing the impact in Oklahoma of the 1998-1999 revision to Article 9.

Financial Institutions and Commercial Law Section

Oklahoma Enacts 2010 Amendments to UCC Article 9By Alvin C. Harrell and Fred H. Miller


…many observers expected that

Oklahoma would quickly enact the 2010 amendments as well. But that

was not to be.

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Thus, the hardback edition of Title 12A in-cludes three sets of UCC Comments: the pre-2010 Official Comments; the 1998-1999 Oklahoma Comments; and 2014 Oklahoma Comments addressing the impact of Oklahoma’s failure at that time to enact the 2010 amendments. The 2014 Oklahoma Comments continue to have relevance to transactions subject to Oklahoma Article 9 before the Nov. 1, 2015, effective date of Oklahoma’s enactment of the 2010 amendments. However, Oklahoma’s June 2015 enactment of the 2010 amendments then required a further updating of the 2014 Oklahoma Comments, to address the effects of the 2015 enactment. Thus, the Legislative Review Subcommit-tee reconvened to draft 2015 Oklahoma Comments for publi-cation in a new pocket part sup-plement to Title 12A (along with the new statutory text and Offi-cial Comments reflecting the 2010 amendments).

tHe 2010 amenDments

While the 2010 amendments are mostly clarifications of prior law (including some, as noted in the 2014 and 2015 Oklahoma Comments, that appear only in Official Comments to the uni-form text), there are a few places where clari-fication required revisions to the statutory text in ways that change prior law.9 The two most important of these are at section 9-503 (affect-ing the name of an individual debtor as shown on a form UCC-1 (Article 9 financing statement)), and section 9-316 (affecting the grace period for automatic perfection of a security interest when the place to file changes by reason of a change in the location of the debtor or the collateral).10 This is not the place for a full explanation of the impact of these changes,11 but interested parties should be aware of the need to consider the issues. There are also some changes to the requirements for the safe-harbor model forms, at sections 9-516 and 9-521, which may warrant some updating efforts.

Additionally, clarifications are made in the 2010 amendments (and/or the Official Com-ments) which relate to such things as: elec-tronic authentication (section 9-102(a)(7)); cer-tificates of title (sections 9-102(a)(10) and 9-311);12 “control” (sections 9-104 and 9-105); anti-assignment clauses (sections 9-406 and

9-408); and disposition sales of collateral (sec-tions 9-611 and 9-613). While these clarifica-tions may not require changes in parties’ practices or procedures (an issue that must be considered on a case-by-case basis in the con-text of a specific scenario), as they largely restate existing law, nonetheless interested parties may need to be aware of any potential impact in a given transaction.


It is surprising that such uncontroversial clarifications of the law, as embodied in the 2010 amend-ments, would spark resis-tance as they did in the Okla-homa Legislature so as to delay the enactment for five years (thereby creating po-tential and unwarranted transition and choice of law problems for Oklahoma transactions). Hopefully, the 2015 Oklahoma Comments will help to minimize these problems, and over time the resulting potential complexi-ties can be minimized. The narrow scope of the changes and the broad consistency

with prior law also should help. Most impor-tantly, however, going forward this important Oklahoma law is once again consistent with the law in all other states.

1. See NCCUSL, http://www.uniformlaws.org/. The sponsoring organizations are: The Uniform Law Commission (ULA), also known as the National Conference of Commissioners on Uniform State Laws (NCCUSL); and the American Law Institute (ALI); with the active participation of the American Bar Association (ABA) and many other parties and organizations.

2. The NCCUSL was organized by the states in 1892, and offered the Uniform Sales Act (precursor to UCC Article 2) for enactment by the states in 1906.

3. See discussion below. On the 1998–1999 revisions, e.g., Oklaho-ma Comments for the 1998–1999 revisions, in Tit. 12A Okla. Stat. Annot. §§1-9-101 et seq.

4. See UCC Article 9, Secured Transactions (1998) Summary, avail-able at http://www.uniformlaws.org/ActSummary.aspx?title=UCC% 20Article%209,%20Secured%20Transactions%20(1998). Oklahoma has a claim to significant credit for this success. The Co-Reporter for the 1998-1999 revision was former Oklahoma lawyer and OCU. Adjunct Professor Charles W. Mooney Jr., and University of Oklaho-ma Law Professor Fred H. Miller was the Executive Director of NCCUSL throughout the revision and enactment process.

5. Oklahoma Enrolled House Bill No. 1773 passed the legislature in May 2015 and was signed by Governor Mary Fallin on June 4, 2015 (to be codified in scattered sections of Tit. 12A Okla. Stat. §§1-9-101 et seq.).

6. As noted below, the 2014 and 2015 Oklahoma Comments are designed in part to address this problem. See, e.g., Fred H. Miller, Oklahoma Comments and the 2010 Amendments to UCC Article 9, 68 Consumer Fin. L. Q. Rep. 360 (2014).

7. Id. See also Brooke M. Donnelly, The Not-So-Uniform Uniform Law – Oklahoma’s Unamended Article 9, 68 Consumer Fin. L.Q. Rep. 374 (2014).

8. Tit. 12A Okla. Stat. Annot. §§9-101 to End.

…Oklahoma’s June 2015 enactment

of the 2010 amendments then required a further

updating of the 2014 Oklahoma


2340 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

9. For additional overviews of the 2010 amendments, see, e.g.: Alvin C. Harrell, The 2010 Amendments to the Uniform Text of Article 9, 65 Consumer Fin. L. Q. Rep. 138 (2011); Thomas J. Buiteweg, Revised UCC Article 9 Provisions Affecting Vehicle Finance, id. at 147.

10. See generally sources sited supra at notes 6, 7 & 9.11. That is a role for the 2015 Oklahoma Comments, which cover

these issues. See also other sources cited supra at notes 6–9.12. See also: sources sited supra at note 9; and for discussion of

related issues, see, e.g., Julie R. Caggiano & Alvin C. Harrell, Common Certificate of Title Litigation and UCC Article 9 Issues, and the Impact of CT Laws, 65 Consumer Fin. L.Q. Rep. 446 (2011).

Alvin C. Harrell is a professor of law at the OCU School of Law and president of Home Savings and Loan Association of Okla-homa City. He is co-author of a dozen books, including The Law of Modern Payment Systems and Notes (with Professor Fred H. Miller). He is editor of the Con-sumer Finance Law Quarterly Re-

port. He chaired the ABA UCC Committee task forces on State Certificate of Title Laws and Oil and Gas Finance.

Fred H. Miller is professor emeritus at the OU College of Law, where he joined the faculty in 1966. He graduated in 1959 from the University of Michigan and received his J.D. from the same university in 1962. He has served as commissioner from Oklahoma to National Confer-ence of Commissioners on Uni-

form State Laws since 1975, and is also former execu-tive director, chair of the Executive Committee and past president of the conference. He has served in leadership roles in several law-related organizations, authored more than 100 legal articles and has spoken at numerous CLE programs.


Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2341

The LGBT equality movement is swiftly changing family law, and not just in legalizing same-sex marriage. Par-entage, adoption, child support, and inheritance are all undergoing rapid changes to accommodate a newer and broader definition of the American family. This pre-sentation will focus primarily on family law, but touch on elements of other evolving areas of law commonly dealt with in Oklahoma district courts. We also will discuss broader LGBT legal issues likely to impact Oklahoma law in the next one to five years, such as coming con-flicts in employment law, free speech, religious freedom, and even commerce.

DECEMBER 2, 2015Noon - 1 p.m. CSTYour choice - any place with a computer!

LGBT EQUALITY AND THE LAW Where we are, where we’re going, and what it can mean for your clients

CLE CREDIT: This course has been approved by the Oklahoma Bar Association Mandatory Continuing Legal Education Commission for 1 hour of mandatory CLE Credit, including 0 hours of ethics. Questions? Call (405) 416-7029.

TUITION: $50. No discounts. Register online at: www.ok-bar.org/members/cle

CANCELLATION POLICY: Cancellations, discounts, refunds, or transfers are not available.


Program Presenter: Brady Henderson, Legal Director, ACLU

2342 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

The act made its appearance in 2004, and from its inception, its unique features were overshadowed by a limitation and an ambigu-ity. The limitation was that only $1 million could be contributed to a preservation trust — which, in itself, invited litigation concerning asset valuation. The ambiguity lay in the oral legislative history behind the act, which held that, to satisfy the act’s requirement that at least half of preservation trust assets must be “Oklahoma assets,” the inventory of assets held by entities organized under Oklahoma law had to be evaluated for “Oklahoma asset” analysis purposes, even though the statute by its terms provided that “equity . . . issued by an Oklahoma-based company” was, itself, an “Oklahoma asset.”

Steven Oshins, a nationally recognized asset protection planning lawyer, recognized both of these deficits in the act. Each year he publishes

a “Domestic Asset Protection Trust State Rank-ings Chart,” and each year, Oklahoma has com-peted for last place against all other DAPT jurisdictions. In his current chart, where our state places last among all 15 DAPT jurisdic-tions, he notes that trust assets “must be majority Oklahoma assets.” Secondly, in his “Domestic Asset Protection Trusts — Key Factors Exam-ined,” published as Steve Leimberg’s Asset Protec-tion Email Newsletter #150 on April 26, 2010, Mr. Oshins’ standout comment about Oklahoma was that its “DAPT statutes are the only DAPT statutes that allow a revocable trust, but the protection is limited to $1,000,000.”

But Senate Bill No. 1904, signed into law by Gov. Fallin on April 21, 2014, promises to be a game-changer. That bill addressed both of Mr. Oshins’ noted concerns about the act: 1) by removing the contribution cap and 2) by cla-rifying that equity of an Oklahoma-based

Oklahoma’s Family Wealth Preservation Trust Act: Now More Than Ever

By Philip R. Feist


Asset protection, as a matter of public policy, is endorsed throughout our country. At a practical level, everyone who locks their house believes in asset protection. To one

degree or another, state statutes are in force to protect corporate shareholders, homeowners, retirement plans, the tools of one’s trade, vehicles and life insurance. In addition, 15 states also have domestic asset protection trust (DAPT) statutes that attempt to protect trust assets from the claims of the settlor’s creditors. Okla-homa is one of those 15 states, with three unique features that distinguish our Oklahoma Family Wealth Preservation Trust Act from all of the others: 1) a preservation trust can be revocable; 2) a preservation trust is an exemption trust not a spendthrift trust or a discretionary distribution trust; and 3) a preservation trust grant-or cannot be a beneficiary of her own trust.

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2343

company is, “without reference to assets owned by the Oklahoma-based company,” an Okla-homa asset.

With these two factors set right, the act has captured the attention of the national asset pro-tection bar.

FOur OF tHe strenGtHs OF tHe aCt

The Oklahoma-Asset Requirement Has Protection Benefits

Michael Passananti, in his very helpful arti-cle, “Domestic Asset Protection Trusts: The Risks and Roadblocks Which May Hinder Their Effectiveness,”1 discusses the full faith and Credit issues relating to enforcing a judg-ment against a debtor grantor of a DAPT in a non-DAPT jurisdiction. He concludes that if a foreign court obtains in rem jurisdiction over DAPT assets or in personam jurisdiction over a DAPT trustee, then the public policy of that nonDAPT jurisdiction could apply to allow the court to disregard the DAPT, and reach DAPT assets located in that jurisdiction to satisfy creditor claims against the debtor grantor. In its May 2013 decision in the Huber case, the U.S. Bankruptcy Court for the Western District of Washington reached the same conclusion and disregarded a Washington resident debtor’s Alaska trust to make trust assets located in that state part of the bankruptcy estate.2

The recent revision to the act clarifying that, for preservation trust purposes, non-Oklaho-ma assets can be transformed into “Oklahoma assets” by being held in an Oklahoma entity, is material to both the in rem and the in personam issues relating to the jurisdiction of a non-Oklahoma court. If the preservation trust trust-ee is otherwise careful to avoid jurisdictional minimal contacts3 with a non-Oklahoma grant-or’s state, an Oklahoma entity (which is owned, in part,4 by the grantor’s preservation trust) which is domesticated in the grantor’s state of residence to hold assets in that jurisdiction could protect preservation trust assets held inside the entity. In such a case, the preserva-tion trust assets would be protected due to the statutory protections given to entities under the law of that foreign jurisdiction, not because of the Oklahoma Preservation Trust Act. Fail-ing to pierce the veil of the preservation trust’s entity interest in the non-Oklahoma grantor’s jurisdiction, the creditor would have to domes-ticate his judgment in Oklahoma, and attempt to reach preservation trust assets through the Oklahoma courts; but in Oklahoma, assets of a

properly drafted and administered preserva-tion trust would be protected under the express language of the act.

Finally, the revocation power — which, under the act, cannot be exercised under judi-cial compulsion — does raise this question: could the foreign court in the non-Oklahoma grantor’s state of residence, where the judg-ment in favor of the grantor’s creditor was ren-dered, hold the grantor in contempt for not exercising the revocation power, as has been done by the federal courts with regard to grant-ors of foreign (non-U.S.) asset protection trusts?5 Or, since under the express terms of the Okla-homa act the revocation power is essentially suspended, so that the power is effectively un-available to the grantor in such a situation, and the preservation trustee is not authorized to honor an exercise of the power under judicial compulsion, would the full faith and credit clause rescue the non-Oklahoma grantor from contempt liability in her state of residence, by requiring that the foreign court recognize this effect of the Oklahoma act? Or, since by law the revocation power cannot be exercised by the non-Oklahoma grantor, and if the indenture governing the preservation trust contained prohibitions on the trustee recognition of a grantor’s exercise of the revocation power un-der compulsion, could the grantor plead legal impossibility as a defense to contempt? Anoth-er commentator suggests that the enforceabili-ty of the foreign court’s judgment should be analyzed on the basis of conflict of laws prin-ciples.6 In any event, this issue should inform prudent drafting of the preservation trust indenture and careful administration of the trust itself.

The Requirement for a Corporate Trustee Has Protection Benefits

The act requires that at least one of the trust-ees of a preservation trust be an “Oklahoma-based bank that maintains a trust department or an Oklahoma-based trust company.”7 The involvement of a professional trustee gives a high level of assurance that proper due dili-gence will go into vetting the grantor and his situation, as well as the assets contributed to a preservation trust, for purposes relating to the Uniform Fraudulent Transfer Act, which is incorporated into the act by explicit reference.8 In addition, a preservation trust that comes under judicial scrutiny should enjoy a presumption of proper administration, which may not be the case with a discretionary distribution asset pro-

2344 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

tection trust where an individual trustee may be required to establish that presumption by pro-ducing records properly maintained in the regu-lar course of trust administration.

The Act Protects Creditors’ Rights

The fact that the Uniform Fraudulent Trans-fer Act is a continuing grid through which grantors and contributed assets are evaluated guarantees that the preservation trust will not be used to abrogate or deny the legitimate rights of creditors. The act further provides that the existing rights of secured creditors in assets contributed to a preservation trust are also fully protected.9

Revocability Has its Benefits

Of all the DAPT statutes, only in Oklahoma can an asset protection trust be set-tled as a revocable trust. A revocable preservation trust does not violate any common law principle of trusts, inas-much as a grantor cannot be a beneficiary of her own pres-ervation trust; so the protec-tions of the act do not come to the grantor as a beneficia-ry, or otherwise.10 A revoca-tion power is not an interest in trust property but, rather, it is a power over property, and repossession of trust property by the grantor upon exercise of the revocation power also does not constitute a beneficial interest in trust property.

A preservation trust being revocable, and not having the grantor as a beneficiary, and having the benefit of professional vetting by a corpo-rate trustee, raises a robust argument that the 10-year claw-back provision of 11 U.S.C. §548(e)(1) should not apply to a preservation trust.11 In addition, the clear exemption language of Sec. 12 of the act12 parallels the exemption language that applies to an individual retirement account (also a self-settled trust arrangement) under Oklahoma law.13 Note, however, that the case of a revocable preservation trust settled by a non-Oklahoma grantor in the U.S. bankruptcy venue presents a vulnerability that will require astute planning. As was pointed out at the March 13, 2015, OBA CLE seminar on the act,14 a preservation trust grantor’s revocation power would come into the hands of the bankruptcy

trustee as an asset of the debtor’s estate, by operation of law and not by judicial action, and would be exercisable by the bankruptcy trust-ee; and while the exemption protections of the act should be available to Oklahoma residents, they would not be available to a non-Oklaho-ma debtor because, in bankruptcy, only the exemptions of the debtor’s own state or of the bankruptcy code are available to a debtor.

a CautIOnarY COmment

A grantor’s indiscriminate and whimsical exercise of the revocation power will almost certainly open up a preservation trust to a “pierce-the-veil” attack by a creditor, on the premise that the grantor’s self-benefit treat-

ment of her preservation trust belies any family-benefit pur-pose for which the trust was settled. To deflect such an at-tack, a grantor, in her preserva-tion trust indenture, would be well advised to consider plac-ing restrictions on her exercise of the revocation power; for instance, time-and-extent re-strictions (e.g. the power can only be exercised during the last week of a calendar quarter, and only to the extent of ___ percent of the value of trust assets), and/or purpose restric-tions (e.g. for medical emergen-cies of the grantor, and for the health, education, maintenance and support of those for whose

support the grantor is legally responsible). In fact, if the exercise of the revocation power is strictly limited to purpose-related restrictions, and no time-and-extent exercise of the power is permitted, then these may serve to impede exercise of the power by a non-Oklahoma bankruptcy trustee as well. Also, providing in the preservation trust indenture that the revo-cation power is not transferrable could further protect the power from creditor assault outside Oklahoma. Lastly, the presence of a corporate trustee, with a duty to enforce those restric-tions and limitations, lends strength to the protective fabric of the preservation trust.

FInal COmments

Oklahoma’s Family Wealth Preservation Trust Act has interjected two legal concepts — revocability and exemption-based protection — into the national asset protection trust dis-

A grantor’s indiscriminate and

whimsical exercise of the revocation power will almost certainly

open up a preservation trust to a ‘pierce-the-

veil’ attack by a creditor…

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cussion. Successful use of the act will take into account at least the following four consider-ations: 1) a Family Wealth Preservation Trust is for…well, family. Only the grantor’s spouse, descendants, ancestors, a tax-exempt charity and trusts for any of these, are “permitted ben-eficiaries” of a preservation trust. Exemptions, by their nature, concern particular assets that are related to protection purposes sanctioned by public policy, as determined by a state’s constitution and the actions of its legislature. This said, an Oklahoma preservation trust is a vehicle for preserving family wealth for family purposes, not for the direct benefit of grantors, and should not be available for other persons or purposes. 2) the act puts in place procedural elements that, together, combine to guarantee as much as possible a positive protection result; these include the requirements for a corporate trustee, an Oklahoma situs for at least half of trust assets and statutory standards (in Oklaho-ma’s Uniform Fraudulent Transfer Act) for vet-ting grantors and assets to prevent fraud on creditors. 3) experienced estate planning law-yers understand that the preservation trust is only one of several available asset protection instruments, and that an effective protection plan is a symphony involving several of those instruments, not a solo played by one of them. 4) using a preservation trust only in situations where “bad facts” and “bad acts” (that is, where a client is trying to obstruct the claims of credi-tors, as those terms are defined under the Uni-form Fraudulent Transfer Act) are not present will ensure that a preservation trust will be con-sidered on its merits, not on the demerits of its settlor, if it ever comes under judicial scrutiny.

1. ACTEC Journal, Winter 2006, pages 260-271.2. In re Donald G. Huber, 493 B.R. 798 (W.D. Wash. 2013). For an

excellent discussion of the Huber case, see the analysis by Jonathan D. Blattmachr and Johnathan G. Blattmachr, Leimberg Asset Protection Planning Newsletter #225, May 11, 2013.

3. See Passananti citations: Hanson v. Denckla, 357 U.S. 235 (1958); McGee v. International Life Insurance Co., 355 U.S. 200 (1957); Interna-tional Shoe Company v. Washington, 326 U.S. 310 (1945); NAPA Develop-ment Corp. Inc. v. Pollution Control Financing Authority, 346 F.Supp.2d 730 (E.D. Pa. 2004); Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D. Pa. 1997); Weintraub v. Walt Disney World Co., 825 F.Supp. 717 (E.D. Pa. 1993); Rose v. Firstar Bank, 819 A.2d 1247 (2003).

4. The assets held by an LLC that is wholly owned by a preserva-tion trust may be vulnerable to creditor attack. See In re Albright, 291 B.R. 538 (Bankr.D.Colo 2003) (since, in a single-member LLC, there are no non-debtor members to protect, and therefore no other parties’ interests would be affected by allowing creditors to reach the debtor LLC owner’s interest itself, the court held that charging order protec-tion does not exist to protect the debtor’s LLC member interest from his creditors); In re Ehmann, 319 B.R. 200 (Bankr.D.Ariz 2005) (because the operating agreement of a limited liability company imposes no

obligations on its members, it is not an executory contract. Conse-quently when a member who is not the manager files a Chapter 7 case, his trustee acquires all of the member’s rights and interests pursuant to §§541(a) & (c)(1) of the Bankruptcy Code, and the limitations of §§365(c) and (e) do not apply), withdrawn as condition of court approval of settlement, 337 B.R. 228.

5. See Lawrence v. Goldberg, 279 F.3d 1294 (11th Cir. 2002); Federal Trade Commission v. Affordable Media, 179 F.3d 1228 (9th Cir. 1999); U.S. v. Bank of Nova Scotia, 740 F2d 817 (11th Cir. 1984).

6. See Shaftel and Bundy, “Domestic Asset Protection Trusts Cre-ated by Nonresident Grantors,” Estate Planning Journal (April 2005).

7. 31 O.S. §1, Sec. 5, subsec. b. The term “Oklahoma-based” includes the requirement that the bank or trust company authorized to do business in Oklahoma also has a “place of business” at a “phy-sical location” in the State.

8. 31 O.S. §17, “Any transfer of monies or property by a grantor to a preservation trust shall be subject to the provisions of the Uniform Fraudulent Transfer Act.”

9. 31 O.S. §12, “[t]ransfer of an asset to a preservation trust does not affect any mortgage, security interest or lien to which that asset is subject.”

10. By explicitly incorporating the Oklahoma Uniform Fraudulent Transfer Act into the Preservation Trust Act (at its §17), a preservation trust grantor cannot use family member beneficiaries as a conduit to indirectly access preservation trust assets. See 24 O.S. §116, B,1 (transfer to an “insider” prohibited) with §113,7a(1) (definition of an “insider” includes a family member).

11. The definitive case to date on what constitutes a “similar device” for purposes of 11 U.S.C. §548(e)(1)(A) is In re Castellano, 514 B.R. 555 (Bankr.N.D.Ill. 2014), where, at 561, citing Black’s Law Dic-tionary, the court defines a “self-settled trust” to be “[a] trust in which the settlor is also the person who is to receive the benefits from the trust, usually set up in an attempt to protect the trust assets from creditors.” Black’s Law Dictionary 1746, 10th ed. 2014.” (emph. Added). By con-trast, preservation trusts are dissimilar devices inasmuch as grantors cannot be a beneficiary, and limitation on a grantor’s revocation power under creditor duress is expressly statutory and not self-drafted.

12. “. . . the corpus and income of a preservation trust shall be exempt from attachment or execution and every other species of forced sale and no judgment, decree, or execution can be a lien on the trust for the payment of debts of a grantor, except a child support judgment.”

13. 31 O.S. §1, Sec. A., subsec. 20 (“. . . exempt from attachment or execution and every other species of forced sale for the payment of debts . . . .”).

14. Comments presented by Mark Sanders, shareholder at Gab-leGotwals in Tulsa, Oklahoma, and adjunct professor of bankruptcy law at the University of Tulsa School of Law. Mr. Sanders was a law clerk for the Honorable Albert S. Dabrowski, Chief United States Bank-ruptcy Judge for the District of Connecticut for over 15 years before joining GableGotwals.

Philip Feist received his J.D. from the University of San Diego School of Law, his B.A. from the University of California and his ThM from Dallas Theological Seminary. He is admitted to practice in Oklahoma, Kansas, Texas, Florida, California, and the

U.S. Virgin Islands, certified as an estate planning, trust and probate law specialist by the State Bar of California. He is a partner at Fellers Snider Blanken-ship Bailey & Tippens and provided technical assis-tance for recent revisions to the OKFWPTA.


2346 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

In other words, if the county fails to send notice to a mortgagee of record, the buyer at the tax sale takes title subject to that mortgage. This requirement is consistent with the consti-tutional concept of due process, which requires the government to give notice prior to the tak-ing of a property interest from a private citi-zen.3 Therefore, a party wishing to attack or defend the effectiveness of a tax resale deed against the interest of a prior owner or an encumbrancer of record may do so on both constitutional grounds and based on the proce-dural requirements provided in the Oklahoma statute.

statutOrY PrOCeDures

The Oklahoma statute requires the treasurer to give notice of an impending tax sale by certi-fied mail to the record owner of the property, in

addition to all mortgagees of record, at least 30 days prior to the tax sale.4 This notice must include the property’s legal description and state the time and place of the tax sale.5 In addi-tion, the statute mandates the exercise of “rea-sonable diligence” in ascertaining the address of a mortgagee of record.6 If, despite the exer-cise of reasonable diligence, the treasurer can-not ascertain such an address, the treasurer is permitted to file an affidavit to that effect and rely on notice by publication.7 Note, however, that the statutory language does not expressly permit this type of substitute notice with respect to the owner.

WHO Is a mOrtGaGee OF reCOrD?

As noted above, the statutory procedure requires that notice be given to “all mortgagees of record,” but how broadly should this lan-

Due Process in Tax Sales By Ashley Warshell and Terrell Monks


Every year on the second Monday in June, real properties subject to tax liens which have remained unpaid for at least three years are sold at county tax sales.1 In preparation for

these tax sales, the county treasurer’s office is required to research the parties interested in each property and attempt notice at all addresses that are likely to be correct. The procedural rules gov-erning this process are outlined in Title 68, Article 31 of the Okla-homa statutes, and the effectiveness of the county treasurer’s resale deed issued to the tax sale buyer is dependent on whether these procedures have been followed. For example, the statute states that “[n]either failure to send notice to any mortgagee of record of said real estate nor failure to receive notice as provided for by this section shall invalidate the resale, but the resale tax deed shall be ineffective to extinguish any mortgage on said real estate of a mortgagee to whom no notice was sent.”2

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guage be interpreted? Are judgment lienhold-ers entitled to the same protection as a mort-gagee? Judgment liens are nonconsensual encumbrances on real property, which are governed by a separate set of statutes and sub-ject to different treatment under the law.8 For example, judgment liens may be subject to lien avoidance or modification in bankruptcy,9 whereas a mortgage may be removed or modi-fied only in more limited circ*mstances.10 Judg-ment liens are not mentioned in the Oklahoma statute governing notice of tax sales, and prin-ciples of statutory construction suggest that the express mention of mortgagees indicates an intent to exclude all other categories of inter-ested lienholders. In other words, it is reason-able to conclude that if the legislature had intended to provide judgment lienholders the same protection as mortgagees of record, it would have either mentioned them specifically or used a broader term.

Due PrOCess

In 1950 the United States Supreme Court decided Mullane v. Central Hanover Bank & Trust Co.,11 addressing issues relating to notice of a judicial settlement of accounts to the beneficia-ries of a common trust fund. The only notice given to the beneficiaries in Mullane was by newspaper publication, which the court found was not sufficiently reliable to meet due pro-cess standards with respect to beneficiaries whose interests and whereabouts were ascer-tainable with the exercise of due diligence.12 In its analysis, the court weighed the individual’s 14th Amendment interest against the interest of the state, stating that “[a]n elementary and fundamental requirement of due process… is notice reasonably calculated, under all the cir-c*mstances, to apprise the interested parties of the pendency of the action and afford them an opportunity to present their objections.”13 However, the court limited its holding to ben-eficiaries with known interests and addresses, overruling constitutional objections as to ben-eficiaries with unknown interests or where actual notice was not reasonably possible or practical.14

In 1989, the Oklahoma Supreme Court decid-ed Wells Fargo Credit Corp. v. Zeigler,15 address-ing the due process issue in the context of a tax sale. In Zeigler, the county treasurer mailed notice by certified mail to Wells Fargo, a mort-gagee, at its address shown on the promissory note and in the telephone directory.16 Neither the envelope nor a signed return receipt was

returned to the treasurer’s office, and the prop-erty was thereafter sold at a tax sale.17 In con-struing the Oklahoma statute, the court stated that “no notice is sent unless there has been an exercise of reasonable diligence,”18 and that “the absence of a return receipt was a red flag, alerting the county treasurer to exercise reason-able diligence in locating Wells Fargo.”19 The court found that Wells Fargo did not receive actual notice, and that due process was violat-ed under circ*mstances where notice was pub-lished and mailed without proof of actual receipt.20 As a result, the tax deed issued to the tax sale buyer was valid, but the buyer’s inter-est was acquired subject to the Wells Fargo mortgage,21 and the tax sale buyer was not entitled to reimbursem*nt or an adjustment of the tax sale purchase price.22 In addition, the court allowed Wells Fargo to collect its attor-ney’s fees from the tax sale buyer.23

One conclusion to be drawn from the Zeigler opinion is that checking the loan documents and telephone directory for addresses does not satisfy the standard of reasonable diligence where actual notice does not result. In Zeigler, the Oklahoma Supreme Court declined to elaborate on what subsequent efforts might have been sufficient; nor did it address how the analysis might change if reasonable diligence would not have yielded a correct address. However, much of the more recent due process case law seems to suggest that nothing short of actual notice is sufficient.24 This raises the ques-tion: What if the notice had been sent to a cor-rect address and left unclaimed, and no amount of additional due diligence could have yielded any other address that would have been likely to reach the addressee?

The United States Court of Appeals for the 4th Circuit gave some weight to these consider-ations in deciding Plemons v. Gale,25 where the owner of property subject to a tax sale had moved to a new address which was not listed in the telephone directory. West Virginia’s statutory scheme, similar to the applicable Oklahoma statute,26 required the exercise “rea-sonably diligent efforts” in providing notice.27 Although the court maintained that something more must be done when the party knows that notice to a property owner has failed,28 it ac-knowledged that reasonable efforts will not always result in actual notice, and that there are instances where reasonable follow-up efforts might prove ineffectual.29 As a result, the district court’s decision was vacated, and the

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case was remanded for a determination as to what efforts were made and whether a search of public documents would have yielded a proper address.30 Note, however, that this approach has not been specifically adopted in any precedent binding in Oklahoma.

The United States Supreme Court continued developing the Mullane “reasonably calculat-ed” standard in 2006, adding that even if mailed notice was reasonably calculated at the time it was sent, subsequent efforts might be required based on the particular circ*mstances of the case.31 For example, in Jones v. Flowers,32 where notice of a tax sale sent to the property owner’s former address was returned unclaimed, the state should have taken “addition-al reasonable steps,” such as resending the notice via regu-lar mail, posting notice on the front door, or addressing oth-erwise undeliverable mail to “occupant.”33 The court rea-soned that since the state had notice that its first attempt was unsuccessful, it should have taken additional steps to address the possibility that the intended recipient was no longer at that address, or had simply decided not to retrieve his certified mail.34

In December 2014, the Oklahoma Court of Civil Appeals issued its decision in Beneficial Finan-cial I Inc. v. Love,35 providing some guidance as to what additional steps may satisfy Oklaho-ma’s reasonable diligence standard. In Love, the county treasurer’s office mailed notice to the mortgagee of record, Beneficial Oklahoma Inc., at the address indicated in the mortgage; the envelope was returned to the treasurer marked “not deliverable as addressed/unable to forward,” with a handwritten note that “this business has been gone 4 years.”36 The treasur-er subsequently posted a notice on the door of the subject property and sent a letter via fac-simile to the mortgagee, stating “IF YOU KNOW ANYTHING ABOUT BENEFICIAL OKLAHOMA INC. WHOSE ADDRESS WAS 981 W. WILL ROGERS BLVD. CLAREMORE, OK 74017, PLEASE CALL OUR OFFICE ASAP!”37 Although the treasurer’s office never received a response to the facsimile message or any other indication that notice to the mort-

gagee had been accomplished, the court none-theless found that the treasurer’s efforts went above and beyond the statutory requirements.38 The key difference in Love appears to be that the mortgagee had undergone a merger and failed to provide notice that it had a new name and address. The court admonished the mort-gagee for failing to update its information by recording additional documentation with the county clerk or providing a forwarding address to the post office, pointing out that the mort-gagee had not presented any evidence that its new name and address would have been dis-coverable upon the exercise of additional rea-sonable efforts.39

More recently, the Oklahoma Supreme Court overturned a decision of the Court of Civil Appeals which affirmed sum-mary judgment in favor of a county treasurer in comparable circ*mstances.40 In Crownover, the county treasurer mailed notice to the property owner by certified mail to his address of record, which was returned marked “Not Deliverable as Addressed Unable to For-ward.”41 The property owner no longer lived at the address, but provided the county with no notice of his address change other than by paying his taxes one time with a check that stat-

ed his correct address.42 The parties in Crownover agreed that the statutory procedure had been followed, and the property owner’s appeal was based solely on due process.43 In its analysis, the court discussed many of the cases mentioned above, reiterating the additional reasonable steps suggested by the Flowers court.44 The court found that it was inconsistent with state and federal jurisprudence for the county to “simply shrug and claim it complied with the notice statute.”45 Perhaps this court was further per-suaded by the fact that the tax sale purchaser was able to locate and contact the prior owner without issue when he wanted to inquire about purchasing a boat and trailer that had been left on the property.46

aDDItIOnal reasOnaBle stePs

Although the specifics and adequacy of any of the “additional reasonable steps” contem-plated, but not explained, in Flowers and Crownover may be debatable, at least one prac-

…the envelope was returned to the treasurer marked ‘not deliverable

as addressed/unable to forward,’ with a

handwritten note that ‘this business has been

gone 4 years.’

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tical conclusion may be drawn from this dis-cussion: The presence of a returned certified mail envelope addressed to an interested party in a tax sale should be recognized as a red flag, both for the county treasurer and in particular for the prospective purchaser. Additional rea-sonable efforts should be made after such an envelope has been returned, and county trea-surers would be wise to at least resend such notices by regular mail, which provides an inexpensive and simple method for addressing the issues raised in the cases discussed above. The absence of any documentation regarding subsequent efforts may be an indication that the prospective purchaser’s interest is at risk.


The status of the law on these issues, whether described in terms of due process or reasonable diligence, is both well-developed and in need of clarification. Although case law provides numerous examples of efforts that have fallen short, these cases are fact-specific, and largely indicate what a county treasurer should not do. More examples of efforts that meet the mini-mum requirements would be helpful in evalu-ating whether a tax sale property is worth investing the necessary time and money. In Oklahoma, the Love court at least acknowledged that something short of actual notice can satisfy the reasonable diligence standard, although even this case is arguably limited to its facts. Given the number of cases holding that notice was insufficient, the potential tax sale buyer would be well-advised to make inquiry into these issues prior to placing a bid at a tax sale, especially where encumbrances may exceed the value of the property and attorney’s fees may be recoverable in foreclosure.

FOr COuntY treasurers anD tHeIr COunsel:

1) Mail notices to interested parties by regu-lar mail in addition to certified mail.

2) Check for addresses in the county records of every county office, including the court clerk and assessor’s offices.

3) Use an investigative research system such as Thomson Reuters CLEAR system to search for up-to-date addresses for all interested parties.

4) Always print search results and maintain copies in the file.

5) Recognize that returned mail is a red flag and establish follow-up procedures to address this issue when needed.

6) Post the notice in a conspicuous location on the property.

FOr PrOPertY OWners/mOrtGaGees/OtHer InteresteD PartIes anD tHeIr COunsel:

1) Determine whether the interested party could have been located by asking the fol-lowing:

a. Was a correct address listed with the county assessor’s office?

b. Was a correct address available in the county’s land records? Addresses for grantees, mortgagees, and holders of other encumbrances of record may be listed on recorded documents.

c. Was a correct address listed with the court clerk’s office? Addresses may be available for defendants who have been sued or have received traffic or other criminal citations.

d. Was a correct address listed in the tele-phone directory?

e. Was the notice posted on the property subject to the tax sale?

f. Did the interested party call the county and report a change of address?

g. Was a correct address available from any other publicly available sources, such as a website?

2) Ask to review the county treasurer’s file; look for documentation that reasonable diligence was exercised in the attempt to locate the interested party.

1. See Okla. Stat. tit. 68, §3105.2. Okla. Stat. tit. 68, §3127.3. See U.S. Const. amend. XIV §1.4. Okla. Stat. tit. 68, §3127.5. Id.6. Id.7. Id.8. See Okla. Stat. tit. 12, §681 et. seq., 11 U.S.C. §522(f)(1) (2010).9. See, e.g., 11 U.S.C. §522(f)(1) (2010) (Chapter 7 debtor may avoid

the fixing of judicial lien to the extent that it impairs an exemption).10. See, e.g., 11 U.S.C. §1322(b)(2) (2010) (Chapter 13 plan may

modify the rights of secured parties, except with respect to a security interest in real estate which is the debtor’s principal residence).

11. 339 U.S. 306 (1950).12. Id. at 310, 315, 317. 13. Id. at 314. 14. Id. at 317, 318.15. 1989 OK 113, 780 P.2d 703.16. Id. at 704.17. Id.

2350 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

18. Id. at 706.19. Id. at 705.20. Id. 21. Id. at 704, 705.22. Id. at 706. 23. Id. at 704, citing Okla. Stat. tit. 42, §176.24. Stottlemyre v. Haworth, 1998 OK CIV APP 31, ¶6 (“To the extent

that Wells Fargo requires that the owner of property subject to tax resale actually receive notice of the tax resale proceedings and inasmuch as the uncontroverted evidence in the present case shows no such actual receipt of notice of the tax resale proceedings by Appellee, we hold the trial court committed no error in setting aside Appellants’ resale tax deed.”) (em-phasis added)

25. 396 F.3d 569 (4th Cir. 2005).26. Okla. Stat. tit. 68, §3127.27. Id. at 572, citing: W. Va. Code Ann. §11A-3-22 (2002); W. Va.

Code Ann. §11A-4-4(b) (2002). 28. Id. at 574-576, citing: Schwartz v. Dey, 665 S.W. 2d 993, 935 (Mo.

1984); Malone v. Robinson, 614 A.2d 33, 38 (D.C. 1992); Bank of America v. Giant Inland Empire R.V. Ctr. Inc., 78 Cal. App. 4th 1267, 93 Cal. Rptr. 2d 626, 635 (Cal. Ct. App. 2000); Tracy v. County of Chester, 489 A.2d 1334; Kennedy v. Mossafa, 100 N.Y.2d 1, 789 N.E. 2d 607 (N.Y. 2003).

29. Id. at 577.30. Id. at 578. 31. Jones v. Flowers, 547 U.S. 220, 229 (2006). 32. Id.33. Id. at 234, 235. 34. Id. at 235.35. 2014 OK CIV APP 103.36. Id. at ¶ 8.37. Id. at ¶ 10 n.6.38. Id. at ¶ 11.39. Id.40. Crownover v. Keel, 2015 OK 35, __ P.3d __. 41. Id. at ¶ 7.42. Id. at ¶ 5. 43. Id. at ¶ 17. 44. Id. at ¶ 21. 45. Id. at ¶ 22. 46. Id. at footnote 1.

Ashley Warshell is an attorney with Hall & Ludlam PLLC and practices in the areas of civil liti-gation, probate, banking, real estate, consumer financial services law and debtor/creditor law. She also serves as vice president of Home Savings and Loan Associa-

tion of Oklahoma City, as a director of the Oklahoma County Bar Association’s Young Lawyers Division, and is a member of the Financial Institutions Article 9 Leg-islative Review Subcommittee and OBA Commercial Law Section. She graduated from the OCU School of Law in 2011 and received her BBA in finance from OU in 2008.

Terrell Monks has served as an assistant city attorney for the cit-ies of Bethany and Piedmont for more than 18 years. He also maintains an office in Midwest City where the practice is fo-cused on probate and estate plan-ning, and his office provides

codification service to Oklahoma municipalities.


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Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2351

As noted elsewhere,6 the cases on this issue often involve one or more of three subject areas that are lightning rods for modern controver-sies: 1) arbitration clauses; 2) choice-of-forum (or choice-of-law) clauses; and 3) warranty disclaimers.7 Sometimes these are intertwined with the effects of a change-in-terms notice, and in the electronic contracting context there may be additional issues relating to assent in a “clickwrap,” “modified clickwrap,” “browse-wrap” or “shrinkwrap” transaction.8

In all of these scenarios the substantive law issues are governed by traditional contract law principles,9 supplemented on narrow issues by the Uniform Electronic Transactions Act (UETA) and/or the Uniform Commercial Code (UCC).10 The guiding principle in the analysis (as recognized in Walker) is to ascertain the expressed intent of the parties, recognizing the

foundational concept that contract law is the embodiment of party autonomy. Thus, the issue of incorporation by reference addressed in Walker goes to the heart of the standards required for the legal recognition of private bargains, perhaps the single most important underpinning for a modern, just and prosper-ous society.11


The Walkers purchased flooring materials from Builddirect.com (BuildDirect) in a con-tract sent to the Walkers by email.12 They print-ed it out and signed the printed contract, and returned it to BuildDirect by facsimile (fax) transmission.13 The printed contract stated that: “[a]ll orders are subject to BuildDirect’s ‘Terms of Sale’.”14 The Walkers received and installed the flooring, and subsequently alleged that their home became infested with “nonindige-

Electronic Commerce and Incorporation by Reference in

Contract LawBy Alvin C. Harrell


In Walker v. Builddirect.com Technologies, Inc.,1 the Oklahoma Supreme Court considered the standard that must be met to incorporate a separate (extrinsic) electronic record into a con-

tract by reference. The issue arises when it is argued that separate records2 should be read together as parts of the contract by reason of a reference to the extrinsic record in the record executed by the contracting parties.3 The Walker court noted that Oklahoma authority on the issue is sparse, and treated the matter as an issue of first impression.4 It is an issue of increased importance in view of the expansion of electronic commerce, given that electronic contracts frequently involve the cross-referencing of extrinsic material via links between web pages.5

2352 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

nous wood-boring insects” which damaged their home, as a result of insect larvae con-tained in the BuildDirect flooring.15 They filed a class action suit against BuildDirect, alleging fraud, breach of contract, negligence, trespass, breach of implied warranties, deceptive trade practices, products liability and nuisance.16

BuildDirect moved to compel arbitration, based on an arbitration clause in the “Terms and Conditions” referenced in the printed con-tract signed by the Walkers.17 BuildDirect noted that the terms and conditions were separately available on the BuildDirect website, accessible by clicking on a hyperlink under that label, under the heading “Customer Service.”18 The Walkers responded that they were not aware of these terms and that the terms were not properly incorporated by reference into the contract.19

The district court denied BuildDirect’s mo-tion to compel arbitration, on grounds the con-tract was ambiguous and that the court could not say as a matter of law that the terms and conditions were incorporated by reference.20 BuildDirect appealed to the United States Court of Appeals for the 10th Circuit, which certified the question to the Oklahoma Supreme Court (as a matter of state law).21

OKlaHOma suPreme COurt OPInIOn

Arbitration agreements are subject to the Federal Arbitration Act (FAA),22 but state con-tract law governs contract formation and inter-pretation issues.23 In Walker, the Oklahoma Supreme Court began its opinion by reempha-sizing basic tenets of contract law, e.g., “the paramount objective of contract interpretation is to effectuate the intent of the parties as expressed by the terms of the contract.”24 As noted, the question in Walker was whether the Terms and Conditions that included the arbi-tration clause were incorporated by reference into the parties’ contract.

The Oklahoma Supreme Court read the exist-ing, limited precedent on the issue as requiring that the incorporated material be “clearly iden-tified in the text” of the contract, or subject to “words of express incorporation,” but con-cluded that the specific legal standards needed to apply this general test on the facts of the Walker case were “lacking.”25 The court pro-ceeded to analyze the issue in view of the guid-ance articulated by Professor Williston in his treatise, Williston on Contracts.26

Williston indicates as the basic test that an incorporation by reference is effective when (in the words of the Oklahoma Supreme Court) “the underlying contract makes clear reference to the separate document, the identity of the separate document may be ascertained beyond doubt, and the parties to the agreement had knowledge of and assented to the incorpora-tion.”27 These standards remain unchanged in the context of electronic contracts, and upon incorporation the extrinsic material becomes part of the parties’ contract.28 The narrow ques-tion in Walker was whether the terms and con-ditions including the arbitration clause were properly incorporated by reference, using this standard.

BuildDirect argued that the terms and condi-tions containing the arbitration clause were expressly incorporated into the contract, plac-ing the Walkers on notice of the relevant provi-sions.29 The Walkers argued that they did not have notice of, and did not agree to, the terms and conditions.30 As have other courts,31 the Oklahoma Supreme Court focused on whether the Walkers were provided reasonable notice of the incorporated material, applying the stan-dard of a “reasonable prudent person.”32 “Notice” includes “circ*mstances that would alert a reasonable, prudent person to investi-gate[,]” and “a party’s failure to read duly incorporated terms will not excuse the obliga-tion to be bound.”33 As noted, this language in the court’s opinion reemphasizes the basic tenets of contract law. “But,” the court went on to state, “incorporation will fail when this Court must employ a forced construction to ‘construe an ambiguity … to import a more favorable consideration to either party than that expressed in the contract.’”34

The language of incorporation in the Walk-ers’ printed contract, making the contract “sub-ject to” the separately available “Terms and Conditions,”35 may seem to meet the test for incorporation by reference, but that was not the court’s conclusion.36 Instead, the court con-cluded that the terms and conditions were not incorporated by reference into the contract.37 The primary basis for the court’s conclusion was that “[m]erely placing quotation marks around the phrase terms of sale, without more, was insufficient to convey to the Walkers … [a] reference to anything more than the multitude of sales terms already expressly enumerated” in the printed contract.38 Thus, “the phrase ‘Terms of Sale’ fails to clearly and unambigu-

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2353

ously state that the parties intended to incorpo-rate any additional terms ….”39 The court con-cluded “[t]hat [this] oblique reference falls short of this Court’s demanding standard[,] and … buttresses this Court’s conclusion that the Walkers neither assented to nor had notice of the additional online terms.”40

The court’s opinion goes on to provide guid-ance as to how BuildDirect could have provided for the desired incorporation by reference, e.g., by using “words of express incorporation or clearly referencing, identifying and directing the Walkers to the document to be incorporated.”41 In contrast, the court concluded, the Walkers’ printed contract gave “every appearance of being a complete agreement – capturing the price, payment method, delivery and sales terms ….”42 The court concluded that “[n]o rea-sonable prudent person … would have notice to think otherwise.”43

The conclusion to the court’s opinion sets out three specific requirements to be met in order to have an effective incorporation by reference:

1) the underlying contract makes clear refer-ence to the extrinsic document[;] 2) the iden-tity and location of the extrinsic document may be ascertained beyond doubt[;] and 3) the parties to the agreement had knowledge of and assented to its incorporation.44


Issues of contract interpretation (ascertaining the intent of the parties based on their expres-sion in the terms of the contract45) often involve questions of fact, and indeed have some inher-ent subjectivity. For this reason it is essential that courts apply consistent legal standards of interpretation, in order to sustain the rule of law in an otherwise largely (and potentially chaotic) subjective analysis. Thus, articulation of these standards is an important function of the law, essential to the maintenance of the contract law principles that are necessary to modern society and distinguish us from our medieval ancestors.46

The Walker court deserves credit for reiterat-ing the time-honored principles at the founda-tion of this legal structure.47 But, if these prin-ciples are to have meaning, they must be given effect in the context of widely-recognized mod-ern practices. In essence, words of agreement must have meaning, and those meanings must be generally recognized by courts.

Several examples are presented in the Walker case. The first is the phrase “subject to.”48 If this language is to have any meaning, it is to subor-dinate the subject text to the extrinsic, refer-enced material; that is, it incorporates the extrinsic material by reference. That is the way it has been interpreted by courts and others in American law,49 and there should be no doubt that this language in the Walker contract meets the first of the three tests articulated in the con-clusion to the court’s Walker opinion. Presum-ably the court did not intend to fault the use of this terminology to achieve incorporation by reference,50 and a careful reading of the Walker opinion indicates that this was not the problem identified by the court.

Thus, it is important to note that the phrase “subject to” was not the focus of the Walker analysis. Instead, the stated basis for the Walker decision was the court’s second and third tests,51 focusing on identification of the extrinsic mate-rial and the parties’ understanding of its impor-tance. The court stated that placing quotation marks around the phrase “Terms of Sale,” “with-out more, was insufficient to convey … [a] refer-ence to anything other than the multitude of sales terms already expressly enumerated with-in the four corners of the Contract.”52 The court further explained its reasoning as follows:

That oblique reference falls short of this Court’s demanding standard. And, it but-tresses this Court’s conclusion that the Walk-ers neither assented to nor had notice of the additional online terms.

* * *

Therefore, BuildDirect’s attempt at incor-poration was nothing more than a vague allusion.53

It appears, then, that the problem in Walker was that the phrase “Terms of Sale” did not sufficiently connote a reference to the extrinsic contract terms, i.e., to terms outside the record being directly executed by the parties. To sat-isfy the court’s “demanding standard,” as artic-ulated in the second test stated in the court’s conclusion,54 the incorporation by reference (arguably using the phrase “subject to” would be sufficient) needs to identify the extrinsic material as such, in order to make clear that something outside the executed record is being incorporated in the agreement. In other words, it must be clear that the agreement is subject to something more than the record being directly executed by the parties. Then, under the third

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test, the proponent must show that “the parties to the agreement had knowledge of and assent-ed to its incorporation.”55

For the most part these are reasonable stan-dards, and have counterparts in electronic con-tracting cases from other jurisdictions.56 The Walker analysis does not require the use of any specific, or “magic” language, merely words indicating that the reference is to something extrinsic. On the facts of Walker, it appears that a minimal addition of language indicating that the terms of sale contained supplementary pro-visions that could be separately accessed would have been sufficient. Clearly the safest way to do this is by providing for a separate assent at the end of or adjacent to a link to the extrinsic terms or to provide a reference to the cite con-taining the extrinsic terms,57 although arguably this goes beyond what is required as a matter of contract law. The focal requirement, as indicated in Walker, is some indication that the parties had notice that the extrinsic mate-rial was part of their contract.58 Arguably the incorporation of the additional “Terms of Sale” in the Walker transaction came very close to meeting this stan-dard.59 Thus, a selective review of other electronic contracting cases with similarities to Walker may be instructive in determin-ing more precisely what con-tract law requires in this context.

OtHer Cases


The cases noted here are not precisely on point for the Walker case, but the issues are similar enough to be related and relevant. In this regard, a few initial observations are appropriate.

First, these cases (like Walker) involve con-tracts for sales of goods, and therefore are sub-ject to UCC Article 2,60 even if the contracts are formed (at least in part) electronically and are also subject to the UETA.61 The Walker court did not discuss either the UCC or the UETA, pre-sumably because the issues in the case were governed by the general contract law princi-ples that provide the foundation for both uni-form laws.62 But this should not obscure the potential role for application of a uniform law

in such cases, e.g., as to contract formation or procedural unconscionability.63

Another introductory point worthy of note is to recognize again64 that many of these cases involve the possible application of an arbitra-tion clause (or a forum selection clause with a similar purpose, e.g., avoiding an unattractive judicial forum). The Congress and United States Supreme Court have articulated a strong public policy in favor of arbitration, as pro-vided in the FAA.65 But as others have noted,66 some courts remain somewhat hostile to arbi-tration, and a strict application of contract law requirements is one of the few ways to vent that hostility within the confines of the FAA.67

Additionally, it can be noted that many of these cases relate to the question of whether a clickwrap or browsewrap assent has been suf-

ficient to form a contract.68 While not the precise issue in Walker, these issues are relat-ed, even similar, to the ques-tion of assent to the Terms of Sale in Walker. The Walker court held that the incorpora-tion by reference of Build-Direct’s terms of sale was not sufficient as assent to extrinsic terms including an arbitration clause.69 While not precisely the issue in the clickwrap and browsewrap cases noted below, the basic issue in Walker is similar, i.e.: What is required as evidence of assent to contract terms?

Finally, as others have also noted,70 there is an increasing division between business-to-business (B2B) transactions and business-to-consumer (B2C) cases. While there have always been reasons to distinguish between cases based on the sophistication levels of the par-ties,71 the increased emphasis on this factor (now enhanced by the expanded federal authority being exercised by the Bureau of Consumer Financial Protection72) also inevita-bly means that freedom of contract is dimin-ished for consumer transactions,73 and the transaction costs are increased due to the greater legal risks.

Selected B2B Cases

With these caveats in mind, consider some illustrative cases on assent to contract terms. In Appliance Zone, LLC v. TexTag, Inc.,74 the NexTag

Another introductory point worthy of note is to

recognize again that many of these cases involve the possible

application of an arbitration clause…

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website provided for assent to the contract terms by clicking on a box adjacent to the fol-lowing language: “I accept the NexTag Terms of Service.”75 The court held that this was suf-ficient as notice and assent, turning aside argu-ments that the arrangement was procedurally unconscionable and that the terms were incon-spicuous.76 The court rejected the argument that the incorporated terms had to appear on the same page as the “I agree” box, noting that the incorporation by reference was “typical for the online retail industry.”77 The resemblance of these facts and legal issues to those in Walker, including even the contract language, is appar-ent, with the possibly relevant distinction that Appliance Zone was a B2B case.78

Similarly, Margae79 was a B2B case involving assent to a forum selection clause (in a contract modification). The contract permitted a pro-spective modification by a posting on the defendant’s website, essentially incorporating future modifications by reference.80 In uphold-ing the referenced terms, the court emphasized that both parties were sophisticated business entities.81

In comparison to Walker, the browsewrap cases create even greater difficulties for the party seeking to enforce the contract, given that there is no adjacent manifestation of assent, only the ability to access the contested terms via a hyperlink.82 Yet a typical case is PDC Labo-ratories, Inc. v. Hach Co.,83 where the online “Terms and Conditions of Sale” (containing the relevant warranty disclaimer) were hyper-linked. The buyer (the plaintiff suing for breach of warranty) was not required to click a box to accept the terms; instead, the last page of the order form instructed the buyer to “Review terms, add any comments, and submit order[,]” followed by a hyperlink to the terms including the disclaimer.84 The court held that the refer-enced terms were adequately communicated to the buyer, citing the UCC Article 2 definition of “conspicuous”85 and Hubbert v. Dell Corp.86 The PDC Laboratories court stated a rule similar to that of the Oklahoma Supreme Court in Walker, namely that the test is whether the referenced terms are reasonably communicated to the buyer,87 but reached a different result on similar facts.

These B2B cases are not exhaustive but appear to be illustrative of the broader case law. Among these cases, Walker is an outlier. But, if the law is to be divided between com-mercial and consumer transactions, perhaps a

better comparison is the B2C cases, noted below.

B2C Cases

Hines v. Overstock.com, Inc.88 was a browse-wrap case in a B2C transaction. Moringiello and Reynolds characterize the facts of this case as “a good lesson on how not to present web-site terms and conditions.”89 The website stated that merely “entering this site will constitute your acceptance of these Terms and Condi-tions.”90 The link to the terms was at the bottom of the page in small print, between a link to the seller’s privacy policy and its trademark, and the ordering process did not require scrolling to that portion of the web page.91 The court held that this was not sufficient as actual or constructive notice of the referenced terms. This seems more consistent with Walker (as compared to the cases noted above), but it should be noted that the problem in Hines was the inconspicuous location of the cross-refer-ence (not noted as a problem in Walker), rather than the adequacy of the language. There was no indication in Hines that a hyperlink cross-reference to the relevant terms was problemati-cal per se.

Another illustrative B2C case is Van Tassell v. United Marketing Group, LLC,92 again (as in Walker) involving assent to an arbitration clause. The defendants, seeking to enforce the arbitration clause in a browserwrap agree-ment, relied unsuccessfully on PDC Laborato-ries and Hubbert.93 The “Terms and Conditions” containing the arbitration clause were dis-played on the defendants’ websites, but a hyperlink did not appear on either the home page or the checkout pages. To find the terms and conditions, it was necessary to scroll to the bottom of the home page and click the “Cus-tomer Service” link, then scroll to the bottom of the Customer Services page or click another link near the end of that list, entitled “Condi-tions of Use, Notices and Disclaimers.” The Van Tassell court concluded that a user could complete his or her transaction without receiv-ing notice of the arbitration clause. Interest-ingly, the court seems to suggest that the B2B cases cited by the defendants (PDC Laboratories and Hubbert) would be persuasive authority in this B2C case, if the notice given in Van Tassell had been as conspicuous as the notice in those B2B cases.94

In contrast to Hines and Van Tassell, in Swift v. Zynga Game Network, Inc.95 the court enforced

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an arbitration clause that was included in terms of service linked to but not visible on the transaction screen. The user was required to click an “accept” button directly above a notice stating that the assent constituted an agree-ment to the terms of service, along with a hyperlink to the terms. The court held that this provided sufficient notice of and an opportu-nity to review the terms of service.96 A similar case is Vernon v. Qwest Communications Interna-tional, Inc.,97 where Qwest sent existing custom-ers a letter notifying them of new contract terms (a change in terms notice), including an arbitra-tion clause, and new customers who signed up on the internet checked a box indicating agree-ment to the relevant “Terms and Conditions,” with a reference to the location of the terms and a request that the customer review them. The court held that this was sufficient notice and enforced the arbitration clause.98

The B2C (and B2B) cases seem consistent with Walker in stating the general contract law rule, that the test is whether the incorporation by reference is conspicuous and notice is rea-sonably communicated to the other party. As noted by Moringiello and Reynolds: “[I]t is not enough that the terms can be found some-where; the terms also must be presented in such a way that they can be found by the rea-sonable user.”99 Not surprisingly, this may require greater clarity with respect to less sophisticated consumer users. Although the precise parameters of this qualification may be somewhat murky in the context of a given sce-nario, it seems clear that the safest approach is to provide a specific notice that additional terms are being incorporated, together with directions to the location of those terms and adequate evidence of assent to the contract. Particular care is required in meeting these requirements in consumer transactions.


In addition to the basic contract law princi-ples noted above, Walker illustrates a growing gap between commercial and consumer trans-actions law. Walker is an outlier compared to some of the commercial contracting cases; as between commercial entities it is quite possible the incorporation by reference in Walker would have been effective.100 It is in the context of other case decisions that focus on the protection of consumers that Walker fits more comfortably.101 In Walker, the contract law requirement for assent on the basis of reasonable notice of the contract terms was interpreted to require that a

merchant contracting with a consumer reach out to more fully highlight all of the applicable terms.102 In the view of the Walker court: “Such a standard ensures that Oklahoma consumers are protected from deceptive and unfair trade practices.”103

It is difficult to argue with this purpose, and probably few would dispute the need for full and effective disclosure of contract terms and evidence of assent. However, it should be noted that the requirement for a heightened standard of technical compliance may not be entirely beneficial to consumers. To the extent that contracting with consumers is made more difficult and legally hazardous by the addition of a technical judicial gloss to consumer protec-tion law (and then becomes more expensive due to increased legal risks), rather than fol-lowing standard commercial practices, con-sumers may suffer reduced access or higher costs in transactions that are common in the commercial world. This has been an emerging trend in American law in recent decades, and may be accelerating.104

It can be noted in this regard that some of the recent efforts to protect consumers have cut-off many consumers from access to home mort-gage loans that formerly were widely avail-able.105 Some may argue that this is the way it should be, and your author does not debate the point here. Nor is there any intent to suggest similar effects from Walker. But one need not disapprove of the Walker analysis in order to note that it fits a pattern of cases limiting the enforcement of consumer contracts. In this regard, it may tempting for lawyers and courts to focus on protecting an individual consumer from some of the traditional standards of con-tract law, without fully contemplating the cumulative effects (and costs) of such an approach.106 It is a point worthy of consider-ation in studying the rationale of cases like Walker.

1. 2015 OK 30, 2015 WL 2074964 (S.Ct. May 5, 2015). Supporting citations in the court’s opinion are omitted from this article unless otherwise noted.

2. The term “record” includes both written and electronic records. See Uniform Electronic Transactions Act (UETA) §2(7) & (13), and cmts. 6 & 10; Okla. UETA, 12A Okla. Stat. §§15-102(7), (9) & 16.

3. This is not to be confused with the composite document rule, a more discretionary rule that may apply even without an incorporation by reference, allowing the court to consider the evidentiary value of separate records that have sufficient relation to each other as to have probative value as regards the parties’ intent, e.g., for purposes of sat-isfying the statute of frauds. See, e.g.: Mitchell v. Shepard Mall State Bank, 458 F.2d 700 (10th Cir. 1972); John D. Calamari & Joseph M. Perillo, Contracts §312 (1970).

4. Walker, 2015 OK 30, at ¶10. However, as noted below, similar issues have been the subject of litigation elsewhere.

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5. For summaries of related cases and issues (some of which are addressed in this article), see, e.g.: Deborah Davis Boykin, “Survey of E-Contracting Cases: Browsewrap, Clickwrap, and Modified Click-wrap Agreements,” 68 Bus. Law. 257 (2010); Juliet M. Moringiello & William L. Reynolds, “Electronic Contracting Cases 2009 – 2010,” 66 Bus. Law. 175 (2010) [hereinafter Moringiello & Reynolds 2010]; Juliet M. Moringiello & William L. Reynolds, “Electronic Contracting Cases 2008 – 2009,” 65 Bus. Law. 317 (2009) [hereinafter Moringiello & Reyn-olds 2009]. As noted below, in Walker the terms of the contract were partly written and partly electronic.

6. See supra note 5 and discussion of other cases infra. 7. See supra note 5. Regarding arbitration (the issue in Walker, as

noted below), see generally Christine A. Scheuneman, Joseph T. Lynyak, III. & Amy L. Pierce, “The CFPB’s Arbitration Study – A Warning to Consumer Financial Service Companies,” 68 Consumer Fin. L.Q. Rep. 32 (2014).

8. See, e.g., authorities cited supra at note 5. 9. See, e.g., Walker, 2015 OK 30, at ¶¶9 & 11. See also infra note 25. 10. See supra note 2. See also Moringiello & Reynolds (2009), supra

note 5, at 322 – 23. 11. See, e.g., John Edward Murray Jr., Contracts: Cases and Materials

1 – 2 (7th ed. 2015). See also infra note 46. 12. Walker, 2015 OK 30, at ¶3. In this article your author uses the

term “printed contract” to mean the written documentation, recogniz-ing that the contract is the agreement between the parties, not its docu-mentation. See, e.g., Murray, supra note 11, at 2 – 6.

13. Walker, 2015 OK 30, at ¶3. Under the UETA, a facsimile copy is treated the same as the signed original. See supra note 2 and UETA §7 & cmt.

14. Walker, 2015 OK 30, at ¶3. 15. Id. at ¶¶4 & 5. 16. Id. at ¶5. 17. Id. at ¶6. 18. Id. 19. Id. at ¶7. 20. Id. 21. Id. 22. Pub. L. No. 80-282, 61 Stat. 669 (1947) (codified as amended at

9 U.S.C.A. §§1 – 16). See generally Scheuneman, Lynyak & Pierce, supra note 7.

23. See, e.g., Walker, 2015 OK 30, at ¶8. In Walker the parties agreed that Oklahoma law applied.

24. Walker, 2015 OK 30, at ¶9. 25. Id. at ¶10 (citing: Monkey Island Dev. Auth. V. Staten, 76 P.3d 84

(Okla. Civ. App. 2003); and High Sierra Energy, LP v. Hull, 241 P.3d 1139 (Okla. Civ. App. 2010)).

26. Id. at ¶11 (citing 11 Williston on Contracts §30.25 (4th ed. 1999)). 27. Id. This language overstates the latter requirement. See infra this

text at notes 31 – 33 and note 44.28. See Walker, 2015 OK 30, at ¶(also citing Okla. Stat. tit. 15 §158,

and One Beacon Ins. v. Crowley Marine Serv., 648 F.3d 258 (5th Cir. 2011)). 29. Id. at ¶12. 30. Id. 31. See supra note 5. 32. Walker, 2015 OK 30, at ¶13. 33. Id. (citing: One Beacon Ins., 648 F.3d at 268 & 269; Cooper v. Fle-

sner, 103 P. 1016 (1909); and McDonald v. McKinney Nursery Co., 143 P. 191 (1914)).

34. Id. (quoting Porter v. Okla. Farm Bureau Mut. Ins. Co., 330 P.3d 511 (2014)).

35. See supra this text at note 14. 36. Walker, 2015 OK 30, at ¶14. See infra this text at notes 48 – 50.37. Walker, 2015 OK 30, at ¶14.38. Id. 39. Id. 40. Id. 41. Id. at ¶15. 42. Id. 43. Id. 44. Id. at ¶16. As indicated above, this description overstates the

third requirement, as proof of actual knowledge is not required. See, e.g., supra this text at notes 27 – 34, and discussion below.

45. See, e.g., supra this text at notes 9 – 11 & 23 – 26. 46. See, e.g., supra note 11. Something over 90 percent of all measur-

able human progress has occurred since the English common law judges created contract law in the 17th and 18th centuries. See, e.g., Matthew Scholnfeld, Opinion, “Air Jordan and the 1%,” Wall Str. J., July 11, 2012, at A11. “The rules of the game changed dramatically in the second half of the 18th century with the industrial revolution, which embodied the workings of what we now know as capitalism – the system that would lift millions out of grinding poverty.” John

Plender, Morality and the Money Motive,” Fin. Times, July 19, 2015, at 7. “The liberation of hundreds of millions from desperate poverty ranks among the greatest success stories in history[, though it] is a story that remains largely untold and mostly unheralded.” William McGurn, Opinion, The Weekend Interview with Arthur Brooks, “Play-ing the Music of Capitalism,” Wall Str. J., July 11 – 12, 2015, at A9.

47. See supra this text at notes 9 – 11 & 23 - 26. 48. See the precise language of the contract at issue in Walker, supra

this text at note 14. 49. A typical, and instructive, example is in UCC Article 3 §3-106,

cmt. 1, stating that language in a promissory note providing that “this note is subject to” extrinsic material will require examination of the extrinsic material to determine the resulting legal rights (in effect incorporating the extrinsic material and therefore rendering the note non-negotiable).

50. The court stated that: “BuildDirect could easily have accom-plished that purpose by drafting the contract employing words of express incorporation ….” Walker, 2015 OK 30, at ¶15. See also supra this text at note 35. Absent an unprecedented strictness of interpretation, it is difficult to conceive a more express incorporation than the phrase “subject to.”

51. See supra this text at notes 41 - 44. 52. Walker, 2015 OK 30, at ¶14. See also supra this text at notes 35 –

40. 53. Walker, 2015 OK 30, at ¶¶14 – 15. See also supra this text at notes

40 – 43. 54. See supra this text at note 44. 55. Id. See also supra this text at notes 27 – 34. 56. Id. See also sources cited supra at note 5; and see discussion below. 57. See, e.g., Moringiello & Reynolds 2009, supra note 5, at 326 (cit-

ing American Law Institute, Principles of Software Contracts (Proposed Final Draft 2009)).

58. See supra this text at notes 40 - 43. 59. Id. Perhaps even adding the word “additional” or “separate” in

front of the reference to “Terms of Sale” would be sufficient to address the Walker concerns. Almost certainly, a link or cross-reference to the location of the additional terms, if conspicuous, would be sufficient. See discussion below.

60. See UCC §2-102; and see infra note 61.61. See, e.g., Moringiello & Reynolds 2009, supra note 5, at 322 – 23

(noting the relation between the UCC and the UETA). 62. See id.; and see UCC §1-103 & UETA Prefatory Note. 63. See UCC Article 2 pt. 2, and §2-302. See also supra this text at

notes 5 - 7 & 9 - 10. 64. See supra this text at notes 5 & 7. 65. See supra notes 7 & 22. 66. See, e.g., email of Bob Luttrell, an attorney with McAfee & Taft

in Oklahoma City, referencing the Walker decision in a distribution to [emailprotected]: “Oklahoma has never been too friendly to arbitration provisions.”

67. See supra note 7. 68. See, e.g., Moringiello & Reynolds 2010, supra note 3, at 175, for

definitions of these terms. 69. See supra this text at notes 8 & 29 – 43. 70. See, e.g., Moringiello & Reynolds 2009, supra note 5, at 318 – 19. 71. See, e.g.: supra this text & note 62; UCC §2-102 (deferring to

consumer protection statutes); Murray, supra note 11, at 468 – 87. 72. See, e.g., Scheuneman, Lynyak & Pierce, supra note 7. 73. See, e.g., id. (referencing Margae, Inc. v. Clear Link Technologies, LLC,

2008 WL 2465450 (D. Utah June 16, 2008) (“there were two sophisticated parties, so the court properly respected their freedom of contract.”).

74. 2009 U.S. Dist. LEXIS 120049 (S.D. Ind. Dec. 22, 2009) (noted in Moringiello & Reynolds 2010, supra note 5, at 176).

75. Appliance Zone, id., at *9 – 10. 76. Id. at *11 – 12. 77. Id. at *12. 78. See Moringiello & Reynolds 2010, supra note 5, at 176 – 77.

Appliance Zone also was a clickwrap case involving a forum selection clause, but that distinction seems irrelevant here given that the means of assent was not at issue in Walker.

79. 2008 WL 2465450. See supra note 73. 80. Margae, 2008 WL 2465450, at *2 (noted in Moringiello & Reyn-

olds 2009, supra note 5, at 318 – 19). 81. Both parties were internet marketing companies. Id. at *5 – 6. 82. See, e.g., the definition of browsewrap in Moringiello & Reyn-

olds 2010, supra note 5, at 175. 83. 2009 U.S. Dist. LEXIS 75378 (C.D. Ill. Aug. 25, 2009) (hyper-

linked warranty disclaimer). 84. Id. (as noted in Moringiello & Reynolds 2010, supra note 5, at

177). 85. UCC §1-201(b)(10). See also UCC §2-302.

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86. 835 N.E.2d 113 (Ill. Ct. App. 2005). 87. PDC Laboratories, 2009 U.S. Dist. LEXIS 75378, at *8 – 9 (as noted

in Moringiello & Reynolds 2010, supra note 5, at 178). 88. 668 F.Supp.2d 362 (E.D. N.Y. 2009) (noted in Moringiello &

Reynolds 2010, supra note 5, at 178). 89. Id. 90. Id. 91. Id., 668 F.Supp.2d at 365 – 67. 92. 795 F.Supp.2d 770 (N.D. Ill. 2011) (as noted in Boykin, supra

note 5, at 257 - 59). 93. See supra Part V.B. 94. Van Tassell, 795 F.Supp.2d at 792 (as quoted in Boykin, supra

note 5, at 258). For another case, similar to Van Tassell, see Jerez v. JD Closeouts, LLC, 943 N.Y.S. 2d 392 (D.Ct. Nassau Cnty. 2012) (noted in Boykin, supra note 5, at 259). In Jerez, the forum selection clause was “buried” and “submerged” within “Terms of Sale” on the defendants’ “About Us” web page, which could only be accessed by clicking an “inconspicuous” link. Id.

95. 805 F.Supp.2d 904 (N.D. Ca. 2011) (noted in Boykin, supra note 5, at 259).

96. Id. at 912. For another, similar case, see Sherman v. AT&T Inc., 2012 WL 1021823 (N.D. Ill. March 26, 2012) (the user completed an online registration form indicating acceptance of the AT&T terms of service, containing an arbitration clause, and “actively clicked that he accepted the hyperlinked terms”). The court held that this was suffi-cient as notice of and assent to the arbitration clause. Id. at * 3 – 5 (as noted in Boykin, supra note 5, at 260 – 61).

97. 2012 WL 768125 (D. Colo. Mar. 8, 2012) (also noted in Boykin, supra note 5, at 261).

98. Id. at * 12 – 13. 99. Moringiello & Reynolds 2010, supra note 5, at 180, quoting Juliet

M. Moringiello & William L. Reynolds, “Survey of the Law of Cyber-space: Internet Contracting Cases 2004 – 2005,” 61 Bus. Law. 433, 436 (2005).

100. See discussion above. 101. Id. 102. It should be noted again that this still does not require the

consumer to actually access, or read, the incorporated terms. See, e.g., Walker, 2015 OK 30, at ¶13: “[A] party’s failure to read duly incorpo-rated terms will not excuse the obligation to be bound” (citing McDon-ald v. McKinney Nursery Co., 1914 OK 438, 143 P. 191). See generally supra this text and notes 22-44.

103. Id. 104. See, e.g., Niall Ferguson, The Great Degeneration (2013),

reviewed in George Melloan, Bookshelf, “A Jeremaid to Heed,” Wall Str. J., June 20, 2013, at A19; Niall Ferguson, Opinion, “The Regulated States of America,” Wall Str. J., June 19, 2013, at A15; Iain McDaniel, Adam Ferguson in The Scottish Enlightenment (2013), reviewed in Jef-frey Collins, Bookshelf, “A Skeptical Modern,” Wall Str. J., Mar. 25, 2013, at A15. This is, to some extent, a gradual reversal of the greatest

development in the history of private law, when the English common law judges grafted the law of merchants (the “Law Merchant”) onto the English common law, creating the law of contracts and permitting (for the first time) ordinary citizens (who were at that time essentially economic serfs) to engage in legally-enforceable private contracts on the same terms as members of the commercial and political elite. See supra this note. Philosophically at least, it can be said to have begun with the Magna Carta in 1215, but it took the English judicial revolution associated with contract law to bring the aspirations to practical fulfill-ment. See, e.g., Daniel Hannan, Review, “Eight Centuries of Liberty?,” Wall Str. J., May 30 – 31, 2015, at C1. The industrial revolution, and most of history’s material improvements in ordinary life, soon fol-lowed. See, e.g., supra note 46.

105. See, e.g., Joe Light, “FHA Aims to Clarify Loan-Rule Condi-tions,” Wall Str. J., May 22, 2015 at C5 (reporting that major mortgage lenders have been “driven … away” from making FHA loans by regu-latory burdens and risks applicable to transactions with low-income borrowers). Arguably the results have been unsatisfactory for some of the intended beneficiaries. See, e.g., Nick Timiraos, The Outlook, “Behind the Rise of the New Housing Headwind,” Wall Str. J., June 8, 2015, at A2 (“The U.S. Homeownership rate is below where it was 20 years ago [and recent research] predicts Homeownership will continue to slip for at least 15 years …. The upshot is that fewer than half of new households formed this decade and next will own homes.”).

106. See, e.g., Greg Ip, Capital Account, “Cost Analysis Missing in Bank Rule Debate,” Wall Str. J., May 14, 2015, at A2.

Alvin C. Harrell is a professor of law at OCU School of Law and president of Home Savings and Loan Association of Okla-homa City. He is co-author of a dozen books, including The Law of Modern Payment Systems and Notes (with Professor Fred H. Miller). He is editor of Consumer Finance Law Quarterly Report.

He chaired the ABA UCC Committee task forces on State Certificate of Title Laws and Oil and Gas Finance.


Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2359

resOlutIOn nO. 1: ClIents’ seCurItY FunD rules

BE IT RESOLVED by the House of Dele-gates of the Oklahoma Bar Association that the amendments to the Clients’ Security Fund Rules, as published in the Oklahoma Bar Journal and posted on the OBA website at www.amokbar.org, be approved and adopted by the Supreme Court. (Requires a majority vote for passage. OBA Bylaws Art. VIII Sec. 5) (Submitted by the Clients’ Secu-rity Fund Task Force and OBA Board of Governors.)

tItle eXamInatIOn stanDarDs

Action: The Oklahoma Title Examinations Standards revisions and additions pub-lished in The Oklahoma Bar Journal 86 2069 (Oct. 17, 2015) were approved in the pro-posed form. The revisions and additions are effective immediately.

2016 OBa Officers and new Board members


PresidentGarvin A. Isaacs, Oklahoma City

President-ElectLinda S. Thomas, Bartlesville

Vice PresidentPaul D. Brunton, Tulsa

Board of Governors

Supreme Court Judicial District ThreeJohn W. Coyle III, Oklahoma City

Supreme Court Judicial District FourKaleb K. Hennigh, Enid

Supreme Court Judicial District FiveJames L. Kee, Duncan

Member At LargeAlissa Hutter, Norman

Young Lawyers Division ChairBryon J. Will, Oklahoma City

House of Delegates ActionsThe following resolution and title examination standards report were submitted to the House of Dele-gates at the 111th Oklahoma Bar Association Annual Meeting at 10:30 a.m. Friday, Nov. 6, 2015, at the Sheraton Hotel in Oklahoma City. Actions are as follows:




2360 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

OBA Officers And new BOArd MeMBers


Garvin a. isaacs Oklahoma City


Paul D. Brunton Tulsa

Vice President

linDa s. thomas Bartlesville


alissa hutter Norman

Member At Large

Bryon J. Will Oklahoma City

YLD Chair

James l. Kee Duncan

District Five

John W. coyle iii Oklahoma City District Three

KaleB K. henniGh Enid

District Four

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2361



State Sen. David Holt of Oklahoma City speaks during the Thursday CLE Plenary session. He was part of a panel discuss-ing the topic “Democracy is Not a Spectator Sport.”

Keynote speaker Eric Liu presents “The True Meaning of Patriotism” during the Annual Luncheon sponsored by the OBA Family Law Section.


OBA President Poarch, Chief Justice John Reif and OBA Vice President Glenn Devoll enjoy the Wednesday evening President’s Reception.

OBA President David Poarch welcomes key-note speaker Eric Liu to the Annual Meeting. Mr. Liu signed copies of his books for numerous meeting attendees.

2362 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

Meeting attendees enjoyed great food and a festive atmosphere during the “It’s Five O’Clock Somewhere” reception sponsored by the OBA sections.

Students from Oklahoma City’s Douglass High School Junior ROTC form a color

guard to lead General Assembly attend-ees in the Pledge of Allegiance.

TU Law Professor Anna Carpenter, Access to Justice Commission Chairperson David Riggs and Vice Chief Justice Douglas Combs discuss the status of the Access to Justice Commission during the annual President’s Breakfast.

Rep. Richard Morrissette of Oklahoma City, Justice Noma Gurich and lawyer John Miley enjoy the atmosphere during the “It’s Five O’Clock Somewhere” reception.

David Poarch presents the OBA President’s Award to lawyer John E. Green of Oklahoma City. Mr. Green

was honored in appreciation of his enduring and steadfast leadership. He was recognized for being a

pioneering OBA member, a mentor of generations and a revered community leader.

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2363

Court of Criminal Appeals Presiding Judge C. Clancy Smith and Chief Justice John Reif speak about issues related to the judiciary during Friday’s General Assem-bly.

OBA President-Elect Garvin Isaacs presides over the Friday meeting of

the House of Delegates.

Bartlesville lawyer Linda Thomas addresses the House of Del-egates. Ms. Thomas was elected president-elect during the Annual Meeting and will serve as 2017 OBA president.

2014 YLD Chair Kaleb Hennigh, Chair-Elect Bryon Will and 2015 YLD Chair LeAnne McGill attend the Young Lawyers Division Annual Meeting. Mr. Will was presented the YLD Officer of the Year Award.

Oklahoma Bar Foundation President Jack Brown presents the 2015 Roger Scott Memorial

Award to Lawton lawyer Dietmar Caudle.

2364 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

It is time for all of us to come together and promote public confidence in the judicial branch of government. We need to work together. OBA committees will help with this project. Please consider joining a committee and participate in educating the public on the history of our country and its three branches of government.

You benefit from the contacts you make, and the association benefits from the work that is done. New members with fresh ideas are encour-aged to become involved. Geography is a non-issue with today’s tech-nology. Teleconferencing from your desk and videoconferencing in Tulsa make it easy to attend meetings if you can’t be there in person.

Sign up today. Option #1 – online at www.okbar.org, scroll down to the bottom of the page. Look for “Members” and click on “Join a Commit-tee.” Options #2 & #3 – Fill out this form and mail or fax as set forth below. I’ll be making appointments soon, so please sign up by Dec. 11, 2015. I’m counting on your support next year to keep our committees active.

Garvin Isaacs, President-Elect

Standing Committees

• Access to Justice

• Awards

• Bar Association Technology

• Bar Center Facilities

• Bench and Bar

• Communications

• Disaster Response and Relief

• Diversity

• Group Insurance

• Law Day

• Law-related Education

• Law Schools

• Lawyers Helping Lawyers Assistance Program

• Legal Intern

• Legislative Monitoring

• Member Services

• Military Assistance

• Paralegal

• Professionalism

• Rules of Professional Conduct

• Solo and Small Firm Conference Planning

• Strategic Planning

• Uniform Laws

• Women in Law

• Work/Life Balance

Note: No need to sign up again if your current term has not expired. Check www.okbar.org/members/committees.aspx for terms

Please Type or Print

Name __________________________________________________________

Telephone ________________________ OBA # _______________________

Address _________________________________________________________

City ___________________________________ State/Zip_________________

FAX ___________________ E-mail ___________________________________

Committee Name

1st Choice ______________________________________________________

2nd Choice _____________________________________________________

3rd Choice ______________________________________________________

Have you ever served on this committee?1st Choice q Yes q No2nd Choice q Yes q No3rd Choice q Yes q No

If so, when? How long?_____________________________________________________________________

n Please assign me to q one q two or q three committees.Besides committee work, I am interested in the following area(s):



Mail: Garvin Isaacs, c/o OBA, P.O. Box 53036, Oklahoma City, OK 73152Fax: (405) 416-7001

Enhance Your Networking, Join a 2016 OBA Committee

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2365

2366 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

The Diversity Committee just held its annual awards event. All I have to say about that is: “well done!” Jabar Shumate gave the keynote address and demonstrated not only his known talent, but also the com-mitment of the University of Oklahoma to ensure that it is a place of teaching and learning for everyone who enrolls. Teaching and learning about how our actions, even out of ignorance, affect others is a worthwhile endeavor. Former Speaker Kris Steele in his remarks after accepting an award for his organization, TEEM, reminded us “there are no spare Oklahomans.”

I like the idea that no one is “spare.” If someone were to ask me if there were any spare law-yers I would certainly say there are not. In pondering that notion I tried to imagine what that would even mean. Given the consistently low ratings of access to justice in the state of Oklahoma I submit that in many places not only do we not have any spares, but we have some real needs as well.

The Diversity Committee event really made me think once again on how the OBA is doing as a welcoming organization and how well our organization reflects the citizens we serve. For

2015, the U.S. Census Bureau estimates the following racial demographics for Oklahoma:

First, I want to say the titles are from the Census Bureau. Secondly, I believe based on my

personal experience that if we were all DNA tested these labels would quickly change and the multiracial categories would be

the overwhelming majority. However, this is all skin-deep stuff so we get what we get for demographic purposes.


Diverse Enough?By John Morris Williams

2015 racial demographics for Oklahoma provided by the U.S. Census Bureau.

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2367

If the lawyer population is representative of the general population then more than one out of every four Oklahoma lawyers would be something other than “white.” The OBA does not keep mandatory racial or ethnic classifications. You can use your own obser-vations to judge how we are doing.

A few years ago I was on the diversity advisory board for a national organization. One of the things I remembered most was people saying that “when no one in the room looks like me I wonder what is going on.” This also applied to busi-ness and retail settings. It quickly became apparent to me that diversity was good business. If you are excluding more than one-fourth of the population from your hiring practices, that is a bad busi-

ness practice. I will let some-one else talk to you about the legal ramifications. On the other hand I have also heard the complaint about there not being enough lawyers of color to hire. Which again leads me to ponder are we diverse enough and if not what do we need to do about it?

I have only touched on race and ethnicity. When you bring gender, sexual orientation, physical disabilities, religion and other identifiers into the mix the job of being diverse and inclusive is a bit more of a task than just appointing someone of color.

I think our members are sen-sitive to these issues. However, as I look around large gather-ings of members I realize we have work to do. I do not think we are diverse enough

when our goal is to serve the public. For the public to have confidence in us we must be a mirror of the community. Cli-ents need to be able to walk into the room and be able to identify with someone like them whether it is their law-yer, opposing counsel, a judge or support staff.

Diverse enough? I challenge you to ask yourself “are we diverse enough” and help us as public citizens to ensure that we lead by example of what both the law and civi-lized society demand of us.

To contact Executive Director Williams, email him at [emailprotected].

2015 Issuesn December

ethics & Professional responsibilityEditor: Shannon L. [emailprotected]: Aug. 1, 2015

2016 Issuesn January

meet Your OBaEditor: Carol Manning

n FebruaryProbateEditor: Judge Allen [emailprotected]: Oct. 1, 2015

n MarchCriminal lawEditor: Melissa [emailprotected]: Oct. 1, 2015

n Aprillaw DayEditor: Carol Manning

n MayIndian lawEditor: Leslie [emailprotected]: Jan. 1, 2016

n AugustBankruptcyEditor: Amanda [emailprotected]: May 1, 2016

n SeptemberBar ConventionEditor: Carol Manning

n Octoberreal PropertyEditor: Shannon [emailprotected]: May 1, 2016

n NovemberPresident’s topicEditor: Melissa [emailprotected]: Aug. 1, 2016

n Decemberethics & Professional responsibilityEditor: Renée [emailprotected]: Aug. 1, 2016

If you would like to write an article on

these topics, contact the editor.


2368 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

Adopting a strategic plan for your law practice probably doesn’t sound like an excit-ing proposition to many law-yers. This is particularly true if some eager beaver wants to schedule a mandatory week-end retreat for the entire law firm to work on a strategic plan. No one would dispute the need for a business plan. But many of us have been involved in strategic plan-ning exercises for volunteer organizations that generated a lot of words and ideas, but didn’t seem to really change things.

Last month in this space, I wrote a column titled “How is Your Law Practice Going to Change?” While there are many necessary changes that lawyers should be imple-menting in their business operations, this column was also intended to highlight the many changes occurring in society and in the way busi-nesses operate, which will pro-vide many opportunities for lawyers.

As the year draws to a close, making plans for next year is a very important practice. If you want to make positive changes in your law practice for next year, you certainly cannot wait to make your plan until New Year’s Eve.

That is a really lousy way to celebrate the new year.

Strategy relates to what you want to accomplish and the goals you set. Tactics relate more to how you will accom-plish your goals. A strategy for many businesses might be increasing revenue or market share. Various types of tactics can include everything from spending more money on mar-keting to hiring more employ-ees to increase production.

My personal hope is that many lawyers and law firms

plan to improve their busi-ness operations by imple-menting (or better incorporat-ing) improved operations next year. This includes many items I have written about in “Law Practice Tips” such as better implementation of practice management soft-ware and services, adopting automated document assem-bly, improving procedure manuals and workflow check-lists, im-proving client satis-faction tools and implement-ing speech recognition for poor typists, to name a few.

The start of a new year is a natural time to focus on strat-egy relating to your vision and long-term plans for your law firm. Adopting automat-ed document assembly or revamping your billing pro-cess to make it more effective

may be critically important for your firm and therefore one of your highest priorities. But those are tactics, not strategies. “Future Proofing Your Law Firm” was the title for one of my Practice Management Advice columns in the ABA’s Law Practice Magazine back in the summer of 2013.

The points I made in that col-umn still serve as a framework

Strategy and Tactics: Plan Your Work and Work Your PlanBy Jim Calloway


Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2369

for visionary strategic planning for law firms today.

Behave as if it is all about the clients, because it is. We are in a service profession. But it is often easy to focus on the quali-ty of legal services provided at the expense of customer ser-vice. We must remember that clients pay attention to both your communications and work product. Every law firm strategic plan must pay atten-tion to the client experience. With the opening of each new matter, lawyers should discuss their client’s expectations and goals and record this informa-tion in the client file. We must always remember that this is how the client will judge our services. A corollary is that it is becoming an increasingly risky proposition to represent clients with completely unrealistic expectations. A disgruntled former client — even one with an objectively great result — is not an asset for a law firm.

Ignore technology advances at your peril. Information tech-nology and the speed of infor-mation flow today is more a part of our daily lives and daily business operations. This is especially true for lawyers, who spend a large amount of their time processing and managing information. What used to be contained in shelves full of law books and paper client files is now more properly managed in the digital format. Information technology management must be an important part of your strategic plan.

Have a better answer for “What will the total cost be?” We all like predictable costs. Anytime you can quote a potential client a fixed fee, you increase the chance that a client will hire your firm. But even where a range of total fees and costs is based on many factors,

you should be able to outline those factors to the prospective client and show how they impact cost.

Know your word processor. Love your word processor. Lawyers are wordsmiths. We draft lots of correspondence, contracts, pleadings and memo-randa. Today’s lawyer should understand word processing tools like Microsoft Word Quick Parts, macros and templates.

Every lawyer who types less than 30 or 40 words a minute should be given a microphone and a copy of Dragon Natural-lySpeaking and then provided with training on how to make it actually work for them. (I don’t really care whether you call that one a strategy or a tactic — it is critical!)

Practice being both efficient and effective. Management guru Peter F. Drucker’s often-quoted statement on this topic is: “Efficiency is doing the thing right. Effectiveness is doing the right thing.” Setting up new tools to capture every stray tenth of an hour so that it can be billed may be efficient, but it is not very effective if the client is already pressuring the firm

to reduce the attorney fees it pays. Staff reductions may look efficient on the financial side. But training staff to help you provide extra value to your cli-ents may be more effective and more positive.

Appreciate that law firm growth cannot be infinite. Law firms have a historical track record of impressive revenue growth over the last several decades. But the past does not always predict the future. Blog-ger and law firm consultant Bruce MacEwen’s book Growth Is Dead: Now What? is available on Amazon via his blog.1 It is an inexpensive purchase and a worthwhile read, no mat-ter what the size of your law firm. We all worry about change and challenges. But the interesting thing about today’s technologically driven business environment is that lower reve-nues need not equal lower profits.

The above ought to include enough items to fuel any law firm strategic planning retreat. Of course for any business to do real strategic planning, the past few years of financial data will be required. For those who would like a primer on law firm management, First Among Equals: How to Manage a Group of Professionals by Patrick J. McKenna and David H. Maister is a classic, and it is available at quite a reasonable price on Amazon.com.

Lawyers are often criticized for not acting like businesspeo-ple. It is certainly true that his-torically law firms, at least until they became large law firms, behaved more as a col-lection of individual profes-sional service providers with pooled resources, expenses and revenues than like many traditional businesses.

Every lawyer who types less than

30 or 40 words a minute should be given a microphone

and a copy of Dragon


2370 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

Lawyers tended to focus more on new developments in the law and developing new clients than on trends that might be revealed by reading the Wall Street Journal or Har-vard Business Review. Those two areas still require a lawyer’s attention. Today’s changes, often fueled by technology advances, happen so quickly that the law, and certainly law-makers, often lag behind. This lag makes keeping on top of new developments in the law even more challenging, but it also means that there is a great-er opportunity for the lawyer to provide value when a regulato-ry framework is not settled and uncertain.

Strategic planning is very important for today’s law firm, including solo practitioners and small law firms. Lawyers tend to work very hard and stay very busy. It is important to step back regularly and look at possible improvements to the law practice to provide better client service and efficient oper-ations. Many law firms know the changes that they need to accomplish already, but seem to suffer from the lack of available time to research and implement these changes. Strategic plan-ning is the best way to deter-mine how to free up resources for long-term goals.

Your strategic plan will be unique. It will be based on your interests, your existing client base, your geographical loca-

tion and the practice areas of the law firm’s focus. It need not be a lengthy document. In fact, for smaller law firms, a list of bulleted points and their priori-tization rank is probably the most manageable result.

Any future planning exercise requires that all of the stake-holders participate. So, while there may be certain issues that are best considered only by the firm’s lawyers or by the part-ners, it is generally the case that critical staff members need to be incorporated into the pro-cess for it to have value and success.

POPular strateGIC tOOl

One popular strategic man-agement tool is to employ the SWOT analysis, where atten-tion is paid to the law firm’s strengths, weaknesses, oppor-tunities and threats. While the firm retreat is a popular format, it is also possible that a series of luncheons or afternoons may work well. The challenge is that lawyers will attempt to “escape from” the process, cit-ing deadlines or client emer-gencies. If the firm decides to make some changes based on this process, it is important that everybody was given the opportunity to be heard and to participate. So participation must be mandatory.

It is desirable, but not neces-sary, to cover all outstanding issues. If the firm management

could agree on taking steps to solve the three most pressing future concerns of the firm, many would agree that is an outstanding first result. But ultimately, regular strategic planning meetings to review plans, discuss success and fail-ures, and make modifications for the future will become a part of the practice of law for successful law firms.

The simple question that all of the lawyers in a firm should discuss is what they want to be doing next year, five years from now and 10 years from now. We won’t have the ability to foresee all of the changes on our horizon. But we can control our destiny to a greater extent if we follow the adage to “plan your work and work your plan.”

The great Yogi Berra passed away Sept. 22, 2015. He was known for his skill on the base-ball diamond and his quotable quotes. My favorite Yogism relates to strategic planning: “You’ve got to be careful if you don’t know where you’re going because you might not get there.”

1. adamsmithesq.com

Mr. Calloway is OBA Manage-ment Assistance Program director. Need a quick answer to a tech problem or help resolving a man-agement dilemma? Contact him at 405-416-7008, 800-522-8065 or [emailprotected]. It’s a free member benefit!

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2371

WHat YOu DOn’t KnOW CAN Hurt YOu

When I accepted the position of ethics counsel at the OBA, I thought I was pretty familiar with the Oklahoma Rules of Professional Conduct (ORPC)1 and Rules Governing Disciplin-ary Proceedings (RGDP).2 It didn’t take very long for me to realize how much I didn’t know. The learning curve has been pretty steep. After a few months as ethics counsel, it has become clear to me that some of my fellow members of the bar are equally unfamiliar with these rules.

We have all heard the saying “you don’t know what you don’t know.” Unless you are intimately familiar with the ORPC and RGDP, you don’t know what you don’t know. How can you comply with the rules when you don’t know what they are or what they require? The obvious solution is to read the rules! As we all know, the ORPC and RGDP are codified in Title 5 of the Okla-homa Statutes titled “Attorneys and the State Bar.”

Since I arrived at the OBA, more than 1,000 telephone calls and/or emails have come into

my office. Some callers have admittedly not read the rele-vant rule prior to their call. If the caller were familiar with the relevant rule and the comments following the rule, the answer to the question posed might

have been clear. If not, call me! Or, if you would like some assurance that your under-standing of the rule and its application is correct, call me! The OBA created the position of ethics counsel so attorneys can be proactive regarding ethi-cal issues that arise and obtain a timely answer to their ques-tions. Take advantage of the available resource and contact me with any questions.

Per Oklahoma law, all contact with the ethics counsel is privi-leged and confidential.3 A record of each call is main-tained along with the name of the inquiring attorney, the attorney’s bar number and tele-phone number, a brief synopsis of the facts stated and advice/guidance given. Any advice/guidance given by the ethics counsel is advisory in nature and is not binding upon the Office of the General Counsel, the Professional Responsibility Tribunal (PRT) or the Supreme Court. Calls to ethics counsel can be a mitigating factor when the general counsel, PRT or Supreme Court is determining what consequences, if any, should be imposed. My office is a resource for OBA members concerning their own conduct, not the conduct of another attorney. Also, the office of eth-ics counsel is not a resource for non-OBA attorneys or members of the general public.

Knowledge of the ORPC and RGDP is essential to the prac-tice of law. These rules are just as important as an attorney’s knowledge of the substantive law of the areas in which they practice. Lack of knowledge of rules could result in an attor-


A Couple of Not-So-Random Thoughts Regarding Your Ethical ResponsibilitiesBy Joe Balkenbush

Unless you are intimately

familiar with the ORPC and RGDP, you don’t know what you don’t


2372 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

ney’s license being suspended or worse. Few, if any, lawyers set out to violate the rules. But again, you don’t know what you don’t know. Read the rules! There are 57 of them. If an attorney reads one rule each week, the task would be com-pleted in about a year. There’s no reason why the rules couldn’t be read more quickly, but as we all know, the longest journey begins with the first step! So, take that first step and become familiar with and knowledgeable of the ORPC and RGDP.

suCCessIOn PlannInG Is ImPeratIVe

So far in 2015, one attorney or more has become incapacitated, passed away or otherwise not able to continue the practice of law. Every month, I have received a call from a mother, father, child or friend of an attorney asking for help in clos-

ing down an attorney’s law practice. None of us want to leave our loved ones with that task. The easy solution is to prepare your succession plan. All of the necessary forms have been prepared and are available to you, free of charge. In 2014, the OBA created The Planning Ahead Guide: Attorney Transition Planning In The Event Of Death Or Incapacity.4

Please take the time to review the materials prepared for you in the planning guide. Simply appointing a successor attorney to deal with your clients, their files and cases will be a positive first step in planning ahead!

Although your familiarity with the ORPC and RGDP are of paramount importance, preparation of your succession plan is equally important. I urge you to follow the advice you would give any client regarding the necessity of estate

planning. Likewise, it is a necessity for each and every attorney to have a succession plan. It’s not a matter of if an attorney will need to plan for such eventualities, it’s when! An attorney’s law practice is certainly part of his or her estate. Please don’t burden your loved ones with the diffi-cult task of closing a law prac-tice. No one plans to fail, they fail to plan!

Mr. Balkenbush is OBA Ethics Counsel. Have an ethics question? It’s a member benefit and all inqui-ries are confidential and privileged. Contact Mr. Balkenbush at [emailprotected] or 405-416-7055; 800-522-8065.

1. www.oscn.net/applications/oscn/Index. asp?ftdb=STOKST05&level=1

2. www.oscn.net/applications/oscn/index. asp?ftdb=STOKRUDP&level=1

3. Title 5 O.S. Appendix 3A, Rule 8.3(d)4. My.okbar.org/oba_attorney_transition_

planning_guide.pdf. The link to the pdf may be found at My.okbar.org on the righthand side of the webpage after logging in and is titled Attorney Transition Planning Guide.

www.okbar.org Your source for OBA news.

At Home At Work And on the Go

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2373

The Oklahoma Bar Association Board of Governors met at the Holiday Inn Express & Suites in Norman on Sept. 25, 2015.

rePOrt OF tHe PresIDent

President Poarch reported he participated in the admission ceremony for new admittees at the Capitol and in the From the School House to the White House CLE presentation. He attended the Budget Committee meeting, Boiling Springs Insti-tute in Woodward, Women in Law Conference in Oklahoma City and dinner hosted by the Cleveland County Bar Associa-tion honoring the Board of Governors.

rePOrt OF tHe Past PresIDent

Past President DeMoss reported she attended the Bud-get Committee meeting and reviewed articles being consid-ered by the Board of Editors. She attended the Women in Law Conference luncheon and also participated as a panel member for one of the confer-ence sessions.

rePOrt OF tHe eXeCutIVe DIreCtOr

Executive Director Williams reported he attended the Okla-homa Supreme Court Access to Justice Commission meeting, From the School House to the White House CLE seminar, Hughes County Bar Association meeting and 50-year pin pre-sentation, Budget Committee meeting, new member swear-ing-in ceremony, meeting with

President-Elect Isaacs regarding a 2016 OCU program, Women in Law Conference luncheon, Cleveland County Bar Associa-tion reception, staff directors meeting and interim study meeting on courthouse security at the House of Representa-tives. Executive Director Wil-liams reported President Poarch did a great job at the From the School House to the White House CLE presentation. He said about 65 people attended including Leadership Academy members, and he heard many positive comments about the seminar.

BOarD memBer rePOrts

Governor Gifford reported he attended the Oklahoma County Bar Association Board of Directors meeting and U.S. Army Judge Advocate Gener-al’s worldwide CLE at the Judge Advocate General’s Learning Center and School. Governor Gotwals reported he attended the Quality Assurance Panel meeting for the Tulsa family court, Tulsa County Bar Association Board and Com-mittee Chairs Leadership Retreat, Inns of Court fall ban-quet, OBA Awards Committee meeting and Beta Theta Pi house rededication and alumni reunion/reception at OU. Governor Hicks reported he attended the Tulsa County Bar Foundation Board of Trustees meeting, Metropolitan Bar Con-ference board teleconference and participated in discussions with OBA Leadership Academy leadership. Governor Kinslow reported he attended the

Budget Committee meeting, Member Services Committee meeting and Comanche County Bar Association monthly meet-ing. Governor Knighton reported he attended the Sep-tember Cleveland County Bar Association meeting, Law-related Education Committee meeting, Cleveland County Bar Association social hour and dinner and Lawyers Helping Lawyers Assistance Program Committee meeting. Governor marshall reported he attended the OBF/OBA dinner, Licensed Legal Intern Committee meet-ing, Boiling Springs Legal Insti-tute and Cleveland County Bar Association dinner for OBA board members. Governor Por-ter reported she attended the Oklahoma County Bar Associa-tion annual dinner, Oklahoma County bar’s CLE Committee meeting, Cleveland County Bar Association social for the Board of Governors, William J. Hollo-way Jr. Inn of Court opening banquet and Women in Law Conference, where she served as moderator for the judicial panel. Governor sain reported he attended the McCurtain County Bar Association lun-cheon and OBA/OBF dinner in Oklahoma City. Governor ste-vens reported he attended the OBA/OBF dinner and Septem-ber Cleveland County Bar Association meeting. Governor tucker reported he attended Muskogee County Bar Associa-tion monthly meeting, special county bar meeting to consider a reinstatement resolution and the OBA/OBF joint dinner. Governor Weedn reported he

Meeting Summaries


2374 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

attended the OBA/OBF joint dinner, Ottawa County Bar Association meeting and Budget Committee meeting.

YOunG laWYers DIVIsIOn rePOrt

Governor McGill reported she helped staff the Kick It For-ward Kickball Tournament, which was well attended and raised about $10,000 for the program. She attended the Oklahoma County Bar Associa-tion Family Law Section meet-ing, OBA Budget Committee meeting, OBA Family Law Section meeting, Ruth Bader Ginsburg Inn of Court 20th anniversary, new attorney swearing-in ceremony and Solo & Small Firm Conference Plan-ning Committee meeting.

rePOrt OF tHe suPreme COurt lIaIsOn

Justice Kauger reported the next free movie night with the justices CLE will be the film Belle on Oct. 29. She said a joint meeting of federal, state and tribal judges will take place Nov. 6 at the Oklahoma Judicial Center. The meeting will be moderated by Judge Jerome Holmes, U.S. Court of Appeals 10th Circuit. She said a Dec. 10 movie night will feature a live performance of A Tuna Christ-mas, a two-man play set in the fictional town of Tuna, Texas.

BOarD lIaIsOn rePOrts

Governor Stevens and Gener-al Counsel Hendryx said the Rules of Professional Conduct Committee is reviewing chang-es recommended by the ABA. Governor Gotwals reported the Professionalism Committee has decided not to hold a sympo-sium this year and will instead try to work with Educational Programs Director Susan Krug on doing a CLE program at the Annual Meeting. The commit-

tee has developed a profession-alism pledge, which it hopes to be added at new admittee swearing-in ceremonies. The committee asked for direction on where to submit its propos-al. He also reported a Tulsa County Bar Association committee distributed Tulsa attorney Fred Slicker’s profes-sionalism book to all new admittees. Governor Marshall reported Legal Intern Commit-tee members are researching two inquiries: 1) regarding an interpretation to provide a rein-statement procedure for an intern who had not registered for the bar exam after gradua-tion and 2) should a provision be made to address whether character and fitness comple-tion should be required. Gover-nor Porter said the Women in Law Conference had a good turnout with a great keynote speaker. Panel discussions were also very good, with Past Presi-dent DeMoss serving on one. Executive Director Williams said the OBA Budget Commit-tee has approved the budget for publication, and the board will review the proposed 2016 bud-get at its next meeting. Gover-nor Knighton said the Law-related Education Committee promoted Constitution Day activities in schools and contin-ues to work on updating the legal guide for young adults. A special working committee is pursuing re-establishing the Oklahoma Teacher of the Year Award. Governor Kinslow said the Member Services Commit-tee heard a presentation from Citrix, and information will be submitted to the board for its consideration. It was reported the Bench and Bar Committee is discussing judicial surveys, and the Diversity Committee will hold its award dinner Oct. 15. President-Elect Isaacs said he has invited Fordham Uni-versity law professor Zephyr

Teachout to speak in Oklahoma City on April 1, 2016, on the Citizens United case.

rePOrt OF tHe General COunsel

General Counsel Hendryx updated board members on the lawsuit filed against the OBA by an individual in Illinois regarding a complaint of crimi-nal defamation. She reported the Illinois attorney hired to represent the OBA successfully filed and argued a motion to dismiss the case. The OBA is completely out of the litigation. The attorney will refund the portion of the retainer that was not used. She reported a writ-ten report of Professional Responsibility Commission actions and OBA disciplinary matters for August was submit-ted to the board for its review.

ratIFICatIOn OF emaIl VOte FOr mCle PrOGram DeVelOPment

The board voted to ratify an email vote approving agree-ments with the Pennsylvania Continuing Legal Education Board (PaCLEB) for new soft-ware to track members’ MCLE credit and an annual license.

ratIFICatIOn OF emaIl VOte aPPrOVInG aGreement WItH an IllInOIs laW FIrm

The board voted to ratify the email vote approving the legal services agreement with the Illinois law firm.

aWarDs COmmIttee reCOmmenDatIOns

Awards Committee Chair Jennifer Castillo briefed the board that nominations were received for all awards; howev-er, the committee did not think nominations in four categories were strong enough to merit an award this year. She reviewed

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2375

the committee’s recommenda-tions and answered questions. Governor Gotwals added com-ments from the meeting. The board approved the Awards Committee recommendations for OBA awards. Governor Marshall recommended that President Poarch call award recipients notifying them of the honor in addition to sending them a letter. President Poarch agreed to do so.

PrOPOseD neW memBer BeneFIt

Management Assistance Pro-gram Director Jim Calloway reported the Member Services Committee heard a presenta-tion from Citrix, which offers a number of services that would benefit OBA members. The committee recommends the OBA approve Citrix at its high-est level of member benefit as an endorsed vendor. Mr. Callo-way reviewed the services. The board authorized negotiations with Citrix and an agreement to be drafted.

ClIents’ seCurItY FunD COmmIttee aPPOIntment

The board approved Presi-dent Poarch’s appointment of Bradley J. Brown, Tulsa, to complete the unexpired term of Cesar Tavares. The term will expire Dec. 31, 2016.


The Oklahoma Bar Association Board of Governors met at the Oklahoma Bar Center in Oklaho-ma City on Oct. 23, 2015.

rePOrt OF tHe PresIDent

President Poarch reported he participated in planning for the Access to Justice Commission panel discussion at the Annual Meeting President’s Breakfast and a telephone conference call

with OBA staff and Eric Liu, Annual Meeting keynote speak-er. He attended the Conference of Southern Bar Presidents meeting in Alexandria, Virginia. He also presented Ada Lois Sipuel awards at the Diversity Committee awards dinner at the Oklahoma Judicial Center, responded to an interview request from a local television station conducting an investiga-tive report on unauthorized practice of law issues and wrote a bar journal article.

rePOrt OF tHe VICe PresIDent

Vice President Devoll report-ed he attended the Garfield County Bar Association meet-ing and worked on plans for the Board of Governors has been event.

rePOrt OF tHe PresIDent-eleCt

President-Elect Isaacs re- ported he attended the OBA Strategic Planning Committee meeting and OBA budget hear-ing. He did a presentation on the history of trial by jury at the Beckham County Bar Associa-tion meeting and submitted an article titled “For $900 Million You Can Buy Your Way Out of the Death Penalty” for the bar journal.

rePOrt OF tHe eXeCutIVe DIreCtOr

Executive Director Williams reported he attended the South-ern Conference of Bar Presi-dents meeting, budget hearing, Diversity Committee awards dinner, monthly staff celebra-tion, Young Lawyers Division board meeting and meetings on the new association manage-ment system. He also helped YLD members stuff backpacks and make deliveries as part of the division’s community service project.

BOarD memBer rePOrts

Governor Gifford reported he attended the Cleveland County Bar Association recep-tion for board members and the Oklahoma County Bar Associa-tion Board of Directors meet-ing. Governor Gotwals report-ed he attended the Inns of Court Pupilage Group meeting and brainstorming for a presen-tation in January on “Repre-senting the Unpopular Client,” Tulsa County Family Court Quality Assurance Panel meeting, Tulsa County Bar Foundation budget preliminary meeting, Tulsa County Bar Association Family Law Section meeting, TCBA Board of Direc-tors meeting and TCBF meet-ing. He also participated in the inspection of the TCBA build-ing renovation project with the architect and campaign chair. Governor Hicks reported he attended the Tulsa County Bar Association Awards & Nomina-tions Committee meeting, Uni-versity of Tulsa Friends of Finance luncheon and OBA Ethics in 18 Holes CLE seminar with Ethics Counsel Joe Balken-bush. Governor Jackson re-ported he attended the October Garfield County Bar Associa-tion meeting. Governor Kin-slow reported he attended the Comanche County Bar Asso-ciation meeting. Governor Knighton reported he attended the Cleveland County Bar Association reception for the Board of Governors and September Lawyers Helping Lawyers Assistance Program meeting. Governor marshall reported he attended the Cleve-land County Bar Association reception for the Board of Gov-ernors. Governor Porter report-ed she attended the Cleveland County Bar Association month-ly luncheon meeting and the William J. Holloway Jr. Inn of Court meeting. Governor sain

2376 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

reported he attended the McCurtain County Bar Associa-tion luncheon, McCurtain Memorial Hospital Foundation meeting and Cleveland County Bar Association dinner. Gover-nor stevens reported he attend-ed the Cleveland County Bar Association reception for the Board of Governors and the October Cleveland County Bar Association meeting. Governor tucker reported he attended the Muskogee County Bar Association meeting, Cleveland County Bar Association recep-tion for the board, Oklahoma Association of Municipal Attor-neys annual meeting and Women in Safe Homes Inc. annual walk for domestic vio-lence awareness. Governor Weedn, unable to attend the meeting, reported via email he attended the Cleveland County Bar Association reception for board members and the Ottawa County Bar Association month-ly meeting.

BOarD lIaIsOn rePOrts

Governor Knighton reported during September the Law-related Education Program held four Peaceful Resolutions for Oklahoma Students training sessions for elementary and middle/high schools. The LRE coordinator will attend a national meeting in Pennsylva-nia. He said teachers are being surveyed about interest in a Teacher of the Year Award. He also reported the Lawyers

Helping Lawyers Assistance Program conducted a training session for lawyers working with lawyers who need help. President Poarch reported the Diversity Committee awards dinner was well attended. Governor Porter reported the Women in Law Committee at its meeting did a wrap up of their recent conference and planned a social event in December. She said all the con-ference speakers received high marks from attendees.

rePOrt OF tHe General COunsel

General Counsel Hendryx reported the Professional Responsibility Commission did not meet in September. A writ-ten report of OBA disciplinary matters for September was submitted to the board for its review.

PrOPOseD neW memBer BeneFIt

Executive Director Williams reported changes were made to a proposed member benefit agreement with Citrix, and the proposed agreement will be emailed soon to board mem-bers for a vote. The board requested to see both the redline and final versions of the agreement.

OBa aWarDs

Governor Gotwals compli-mented President Poarch on

calling all the OBA award win-ners within 24 hours of the board’s final approval of Awards Committee recommen-dations. He heard good com-ments from recipients.

PrOPOseD 2016 OBa BuDGet

Administration Director Combs reviewed the budget executive summary, which describes changes from the previous year. Discussion fol-lowed. The budget includes an increase in funding of public education. President-Elect Isaacs shared with the board his plan to work with the courts to designate a Juror Appreciation Month in Oklaho-ma. He wants people who serve on juries to understand their role is vital to this coun-try’s constitutional process. The board approved the proposed budget and to submit it to the Oklahoma Supreme Court for its approval.

neXt meetInG

The Board of Governors met Nov. 4, 2015, in conjunction with the Annual Meeting. A summary of those actions will be published after the minutes are approved. The next board meeting will be at 10 a.m. Friday, Dec. 11, 2015, at the Oklahoma Bar Center in Oklahoma City.

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2377


2015 ObF Scholarship Recipients

Sheridan Lindley from the University of Oklahoma Col-lege of Law has been awarded the Maurice H. Merrill Memori-al Public Law Scholarship. She has a Bachelor’s degree in busi-ness administration, summa cum laude, economics and a minor in Spanish from OU. She is a member of the National Honor Society of Collegiate Scholars, Chi Omega Sorority, Pre-Law Society and Campus Activities Council Crew.

“Law school and the work involved can be mentally and emotionally exhausting, but the financial burden it imposes has caused me just as much stress,” Ms. Lindley said. “The Maurice H. Merrill Scholarship helped to ease this burden, and I am extremely grateful for being chosen as the recipient. I am the first person in my family to pursue a career in the field of law, and I want to set a good example and meet the high academic standards I have established for myself. The scholarship helped me take one step closer toward achiev-ing these goals.”

Ms. Lindley has received the following honors: National Merit Scholar, Byrd Scholar, Oklahoma All-State Scholar, dean’s honor roll, president’s honor roll and Beta Gamma Sigma at the Price College of Business.

This scholarship was named for Maurice H. Merrill, attorney and OU law professor. The

scholarship fund was created in 1968 through gifts in memory of Professor Merrill and was increased in size in 1984 to pro-vide an annual scholarship for research in the field of public law. The Merrill fund is a permanent endowment that provides for the award of schol-arship funding annually to an OU law school student.


anne DanIel

University of Tulsa College of Law student Anne Daniel received the Oklahoma Bar Foundation’s Fellow Scholar-ship. She has a B.A. in English literature from Texas Christian University. She is the first place award recipient in the Edge Law Firm Criminal Competi-tion and is the current editor for the University of Tulsa Law Review. Ms. Daniel comes from a long line of passionate attor-neys, as both her parents, her grandfather and four of her

uncles practice law. She plans to pursue a career in criminal law.

“The OBF has always been supportive of law students in the state of Oklahoma,” Ms. Daniels said. “I am thankful and grateful to be one of the recipients of the OBF Scholar-ships, and look forward to being an attorney in Oklahoma beginning this spring.”

Ms. Daniels has received the following honors: TU faculty honor roll, dean’s honor roll and board of advocates.

The OBF Fellow Scholarship was created in 2006 in celebra-tion of the foundation’s 60th year of service. The OBF established the scholarship to provide financial assistance to law students currently enrolled in Oklahoma with a demon-strated intent to practice law in Oklahoma.

Sheridan Lindley Anne Daniel

2378 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

Oklahoma Bar Foundation Contribution Form Name: Mr. /Mrs. /Ms. _______________________________________ Company: ____________________________________________ Billing Address: ______________________________________________ City: __________________ State: __________ Zip: ________ Preferred Email: ___ Personal ___ Work Email Address: ________________________________________________

Tax Receipt will be emailed to address listed above Birthday: _____________ Cell Phone: ________________ Home Phone: _________________ Work Phone: _________________ Month/Day/Year What inspires you to give? __________________________________________________________________________________________

FELLOWS PROGRAMS Join a giving program!

Fellows Program – individuals Community Fellow -­ law firms, companies, organizations

Thank you for your contribution. Your gift is tax deductible.


P.O. Box 53036 OKC, OK 73152

Phone: 405.416.7070 Fax: 405.416.7089 www.okbarfoundation.org

Community Fellows Program:

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Fellows Program: _____ $100/year Sustaining Fellow _____ $200/year Contributing Fellow _____ $300/year Benefactor Fellow _____ $500/year Leadership Fellow _____ $1,000/year Governing Fellow


$50 _____ $75 _____ $100 _____ $250 _____ $500 _____ Other $__________


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Thank you for your contribution. Your gift is tax deductible.

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2379

MEMBER BENEFITCheck out the perks

of being an OBA member

And that’s not all! For more member perks, visit www.okbar.org/members/members/benefits

• E-news• Fastcase• OBA-NET• Continuing Legal Education • Research links • Speakers Bureau • Oklahoma Bar Journal • Consumer information brochures • Young Lawyers Division • Office “health checks”• Title Exam Standards • Lending Library • Ethics Counsel • Lawyers Helping Lawyers • Insurance • Multiple member discounts

2380 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

On Oct. 17, 2015, the YLD held our annual Day of Ser-vice project. This year, we decided to do a hunger pre-vention project for school children across the state. We chose a backpack project that would provide supplemental backpacks for extended school breaks, as opposed to the “weekend backpacks” that are generally provided.

In speaking with the Regional Food Bank and the Eastern

Oklahoma Food Bank, we became aware of a need for “supplemental” packs. Many or all of the schools we provided backpacks to had some sort of backpack program in place for students in need; however, it seemed that all could benefit from additional resources/pro-visions for these longer holiday breaks, such as Thanksgiving or Christmas.

Thankfully, Thunder Cares graciously agreed to allow us to

use the leftover back-packs that had been donated for Oklaho-ma’s Promise. Fire-Lake Grocery in Shawnee (of the Citi-zen Potawatomi Nation) was incredi-bly helpful as well. They ordered all of the food for us from their suppliers and provided them to us at wholesale cost! Without the assis-tance of Thunder Cares and FireLake, this project would not have been so success-ful! We were able to do so much more good thanks to their generosity.

Our board mem-bers packed approxi-mately 200 Thunder backpacks, each con-taining food for about five days.

The packs were delivered to the following:

1) Garber Elementary – Garfield County

2) Calumet Elementary – Canadian County

3) Boys and Girls Club of Nowata, serving Nowata Public Schools – Nowata County

4) Washington Elementary in Lawton – Comanche County

5) Maud Elementary – Potta- watomie and Seminole Counties

6) Shared Blessings in McAles-ter – to be distributed to multiple schools1


Another Successful Day of ServiceBy Brandi N. Nowakowski

Brandi Nowakowski shows off one of the backbacks donated by Thunder Cares.

The backpacks contained the following products:

n Shelf-stable milk and chocolate milk

n Juice boxes

n Granola bars

n Fruit grain bars

n Cereal

n Cereal bars

n Oatmeal

n Peanut butter and cheese crackers

n Pre-packaged mixed fruit

n Raisins

n Applesauce

n Pudding cups

n Cheez-Its

n Easy-Mac

n Chef Boyardee beefaroni and ravioli pop-top microwave meals

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2381

When selecting schools, I asked our board members to suggest schools in their dis-tricts which could benefit from this project, and we considered the percentage of students receiving free or reduced lunches, as that number is indicative of need.

Further, I decided to select schools located outside of the Tulsa and OKC metro areas, primarily in rural Oklahoma.

The largest cit-ies and more metropolitan areas are more likely to have the benefit of several nonprof-it or charitable organizations and churches that are already serving that need for their communities. The rural areas of Oklahoma are less likely to

have these resources, or as many of them, available. As another young lawyer noted, in his small town, people come together to address the needs of the community, but they have fewer resources with which to do so.

At one of our recipient schools, the school administra-tor mentioned that the school backpack program coordinator came to her a few days prior

and said there were three more children who needed to be added to the program. The coordinator was concerned that the program was running low on resources, but they added the children anyway. Thankful-ly, we were able to fill that need and provide additional resourc-es to that school. It was perfect timing, and I am so glad we could help!

1. Shared Blessings serves roughly 700 kids at 18 different schools, though the exact num-ber of schools they were able to provide these backpacks for is not known.

YLD Chair LeAnne McGill (left) pre-sented the following awards: (from left) Bryon Will, Out-standing Officer; Carol Manning rep-resenting the OBA Communications Department, Friend of the YLD; April Moaning, Outstand-ing Committee Chair; Faye Rodgers, Outstanding Director; Stephanie Cox, YLD Fellow; and Renée DeMoss, YLD Fellow. YLD 2014 Chair Kaleb Henneigh assisted in the awards presentation.

The YLD stuffs backpacks for their Day of Service backpack project.

On Thursday, Nov. 5, 2015, in coordination with the OBA Annual Meeting, the YLD presented their annual awards.

Ms. Nowa-kowski is an attorney in Shawnee and represents Dis-trict 8 on the YLD Board of Directors.


2382 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

26-27 OBA Closed - Thanksgiving

1 OBA Government and Administrative Law Section meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City; Contact John E. Miley 405-557-7146

3 Lawyers Helping Lawyers discussion group; 6 p.m.; 701 NW 13th St., Office of Tom Cummings, Oklahoma City; Contact Jeanne Snider 405-366-5423

4 OBA Alternative Dispute Resolution Section meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Ken Morgan Stoner 405-705-2910

9 OBA Women in Law Committee meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Kimberly Hays 918-592-2800

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

OBA Law-related Education Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Suzanne Heggy 405-556-9615

OBA Family Law Section meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City with telecon-ference; Contact Michelle K. Smith 405-759-2333

OBA Rules of Professional Conduct Committee meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Paul B. Middleton 405-235-7600

15 OBA Bench and Bar Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with telecon-ference; Contact Judge David B. Lewis 405-556-9611

OBA Diversity Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Tiece I. Dempsey 405-524-6395

OBA Licensed Legal Intern Committee meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Candace G. Blalock 405-238-0143

16 OBA Indian Law Section meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with telecon-ference; Contact Trisha Archer 918-619-9191

17 OBA Professionalism Committee meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Patricia Podolec 405-760-3358

18 OBA Professional Responsibility Commission meeting; 9:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact Gina Hendryx 405-416-7007

24-25 OBA Closed - Christmas

1 OBA Closed - New Year’s Day

5 OBA Government and Administrative Law Section meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City; Contact John E. Miley 405-557-7146

7 Lawyers Helping Lawyers discussion group; 6 p.m.; 701 NW 13th St., Office of Tom Cummings, Oklahoma City; Contact Jeanne Snider 405-366-5423





Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2383

8 OBA Law-related Education Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Suzanne Heggy 405-556-9615

OBA Family Law Section meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City with telecon-ference; Contact Michelle K. Smith 405-759-2333

13 OBA Women in Law Committee meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Kimberly Hays 918-592-2800

14 OBA Board of Governors meeting; 2 p.m.; Teleconference; Contact John Morris Williams 405-416-7000

18 OBA Closed - Martin Luther King Day

20 OBA Indian Law Section meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with telecon-ference; Contact Trisha Archer 918-619-9191

22 OBA Lawyers Helping Lawyers Committee meeting; 12 p.m.; 406 S. Boulder, Ste. 432, Tulsa, Office of Hugh Hood; Contact Jeanne Snider 405-366-5423

28 OBA Professionalism Committee meeting 4 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Patricia Podolec 405-760-3358

2 OBA Government and Administrative Law Section meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City; Contact John E. Miley 405-557-7146

4 Lawyers Helping Lawyers discussion group; 6 p.m.; 701 NW 13th St., Office of Tom Cummings, Oklahoma City; Contact Jeanne Snider 405-366-5423

5 OBA Alternative Dispute Resolution Section meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Ken Morgan Stoner 405-705-2910

10 OBA Women in Law Committee meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Kimberly Hays 918-592-2800

12 OBA Law-related Education Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Suzanne Heggy 405-556-9615

OBA Family Law Section meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City with telecon-ference; Contact Michelle K. Smith 405-759-2333


2384 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015


OBA Member Resignations

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

Ted Daniel RossierOBA No. 160414008 Glasgow Dr.Norman, OK 73072

Adam Dale SheltonOBA No. 208411851 Bassett St., No. 510Denver, CO 80202

Janet Frye SteeleOBA No. 314513801 Bridgeport Rd.Norman, OK 73072

LHL Discussion Group Hosts December Meeting

“Practice of Law and Spirituality” will be the topic of the Dec. 3 meeting of the Lawyers Helping Lawyers monthly discussion group. Each meeting, always the first Thursday of each month, is facilitated by committee members and a licensed mental health professional. The group meets from 6 to 7:30 p.m. at the office of Tom Cummings, 701 N.W. 13th St. Oklahoma City. There is no cost to attend and snacks will be provided. RSVPs to Kim Reber, [emailprotected], are encouraged to ensure there is food for all.

• Interested in forming a discussion group in Tulsa? Contact Hugh Hood: 918-747-4357.


Call 24/7 — 800-364-7886

OBA Member Reinstatement

The following OBA member suspended for nonpayment of dues or noncompliance with the Rules for Mandatory Continuing Legal Education has complied with the requirements for reinstatement, and notice is hereby given of such reinstatement:

Mitchell Kenneth CoatneyOBA No. 2106616224 Muirfield PlaceEdmond, OK 73013

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

Social MediaHave you checked out the OBA Facebook page? It’s a great way to get updates and information about upcoming events and the Oklahoma legal community. Like our page at www.facebook.com/Oklahom-aBar Association. And be sure to follow @OklahomaBar on Twitter!

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2385

Court Employees Recognized

The Case Management Assist Team for the Bankruptcy Court for the Western District of Oklahoma was recently presented with a Director’s Award for Excellence in Court Operations by the Administrative Office of the U.S. Courts.

The award was presented in rec-ognition of the team’s development of CMA, now used by 37 bankrupt-cy courts and two district courts with other courts in the implementa-tion stage. CMA works alongside the Case Management/Electronic Case Files System to distribute, organize, prioritize, and assign work for a case administrator, among other capabilities. Financial officers also may use it to monitor payments due and judges and clerks may use it to remain current on court filings.

Team members are IT manager Scott Bellingham, administrative support analyst Annamarie Cooper, Bankruptcy Clerk of Court Grant Price, Chief Deputy Bankruptcy Clerk of Court Sheila Sewell, operations manager Penny Wallis and automation supervisor Ronn Folk.

Hughes County Celebrates Long-time Bar Member

OBA member Victor Pryor of Holdenville was recently presented with a certificate and pin recognizing 50 years of service to the bar association by OBA Executive Director John Morris Williams. Many members of the local county bar association turned out for the occasion. The OBA congratulates all lawyers who are celebrat-ing milestone anniversaries in 2015!

2386 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

OBA Staff Members Earn Honors

The OBA is very proud of two staff members who were recently presented awards by professional organizations with whom they are affiliated. Law-relat-ed Education Coordinator Jane mcCon-nell received the Mike Adkins Memorial Friend of Social Studies Award from the Oklahoma Council for the Social Studies. The honor is given to an individual who has made numerous and exceptional contributions over an extended period of leadership in social studies education in the state of Oklahoma. Law Practice Magazine has named OBA Management Assistance Program Director Jim Cal-loway as the recipient of the Robert Wilkins Award for Best Column for the publication’s 2014-15 editorial year.

Heroes Program Celebrates Fifth Anniversary

On Veterans Day 2010, the OBA launched Oklahoma Lawyers for America’s Heroes to provide free legal advice and assistance to qualifying active duty service-men and women and veterans. As of this year, more than $2.7 million in legal services have been donated by Oklahoma lawyers through the Heroes program. Nearly 700 lawyer volunteers have participated and more than 3,600 heroes have received services under the program.

A great need still exists for Oklahoma lawyers to vol-unteer for the program, especially in the area of family law. The mission is to offer one-on-one legal counsel to those members of the guard or reserve who are cur-rently or have honorably served this nation who other-wise cannot afford or do not have access to the services they need. Please visit www.okbar.org/heroes to learn more about the program. To volunteer, contact Gisele Perryman at 405-416-7086 or email [emailprotected].

Melissa McLawhorn Houston Appointed Interim Labor Commissioner

Governor Mary Fallin has announced she will appoint Melissa McLawhorn Hous-ton as Oklahoma labor com-missioner until January 2019. Ms. Houston, who has been chief of staff and poli-cy adviser for Oklahoma Attorney General Scott Pruitt since 2011, will fill the remaining term of former Labor Commissioner Mark Costello, who died in August. The commissioner of labor is responsible for the enforcement of labor laws that promote fair-ness and equity in the workforce, including state wage laws, workers’ compensation compliance, state Occupational Safety and Health Administra-tion laws for public employers, child labor laws and various other duties.

Ms. Houston is an experienced administrator with an extensive background in state government. Before serving as the attorney general’s chief of staff, she served for nine years (2002-2011) as the chief of staff for the Oklahoma Office of Homeland Security. Prior to that, she served as deputy direc-tor for the Oklahoma Sheriffs Association and as an attorney for the Oklahoma Truth in Sentencing Pol-icy Advisory Commission. She is a 1994 graduate of the OU College of Law.

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2387

The International Munici-pal Lawyers Association

has announced andrea lynn Chism as a member of its 2015 class of Local Govern-ment Fellows. The program was established in 1999 to recognize attorneys as legal specialists in the field of local government law and to pro-mote competency in the field. She earned her J.D. from the OCU School of Law in 2007.

Glenn Floyd was honored by the American College

of Bond Counsel for his con-tributions to the college as a founding fellow and former president. He is a part of The Floyd Law Firm of Norman and graduated from the OU College of Law in 1967.

Harry Birdwell received the Distinguished Alum-

ni Award given out annually by the OSU Alumni Associa-tion. The award recognizes alumni who attain distinctive success in their chosen profes-sion, perform outstanding services to their communities and strive to support the advancement of OSU. He earned his J.D. from the OU College of Law in 1975.

Craig a. Fitzgerald has been selected as a Litiga-

tion Counsel of America fel-low. The LCA is a trial lawyer honorary society composed of less than one-half of 1 percent of American lawyers. Fellow-

ship in the LCA is highly selective and by invitation only. Fellows are selected based upon excellence and accomplishment in litigation, both at the trial and appellate levels, and superior ethical reputation. He earned his J.D. from Vanderbilt University Law School in 1992.

GableGotwals has an-nounced that andrea

Pickryl and James m. scears joined the firm’s Tulsa office. Ms. Pickryl’s primary focus will be transactional law. She earned her J.D. with honors from the TU College of Law in 2015. Mr. Scears focuses his practice on tax law, as well as estate and trust planning. He returns to Oklahoma after practicing law in Zurich, Switzerland. He graduated from the OU College of Law in 2012 and holds an LL.M. in taxation from New York Uni-versity School of Law.

Sherwood, McCormick & Robert has announced that

Grant a. Carpenter joined the firm. His practice will include business litigation, nonprofit law, personal injury and elder law. He graduated from the OU College of Law in 2015.

Lauren m. marciano has joined the firm of Rhodes,

Hieronymus, Jones, Tucker and Gable as an associate. Her practice is concentrated in civil defense litigation and she received her J.D. from the TU College of Law in 2012.

Lloyd and Karla McAlister have announced the addi-

tion of two new partners to their firm, Brandon Baker and Cara nicklas. The firm will be known as McAlister, McAlister, Baker & Nicklas PLLC. Mr. Baker practices primarily in the areas of business formation, business transactions, real estate transactions and oil and gas transactions. He received his J.D. from the OU College of Law in 2006. Ms. Nicklas’ practice focuses on employ-ment law, civil and business litigation, probate and trust litigation, guardianship and estate planning. She received her J.D. from the OCU School of Law in 1990.

McAfee & Taft has announced that Jenny

m. Odom and Kaitlyn e. schrick joined the firm. Ms. Odom represents and coun-sels clients in a broad range of business transactions and compliance matters with an emphasis on issues affecting the healthcare industry. She graduated with honors from the OU College of Law in 2015. Ms. Shrick is a transac-tional lawyer whose practice encompasses a broad range of corporate and business mat-ters. She earned her J.D. with honors from the OU College of Law in 2015.


2388 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

Crowe & Dunlevy recently announced attorney

louis W. utsch joined the firm as a director in the Okla-homa City office. He is a member of the firm’s Taxation Practice Group. Mr. Utsch has concentrated his career in the practice of energy tax law and tax consulting. He received his J.D. from the University of Virginia in 1993.

Legal Aid Services of Okla-homa Inc. welcomes attor-

neys stephanie a. Hansen and Daniel a. sanders to the McAlester Legal Aid office. Ms. Hansen will focus on family law matters. She earned her J.D. from Regent University in Virginia in 2015. Mr. Sanders will focus primarily on social security benefits and received his J.D. from the OCU School of Law in 2002.

The law firm of Norman Wohlgemuth Chandler

Jeter Barnett & Ray has announced the addition of Barrett Powers and alex telarik. Both Mr. Powers and Mr. Telarik will focus on complex civil litigation. Mr. Powers earned his J.D. with honors from the TU College of Law in 2015. Mr. Telarik also earned his J.D. in 2015 from Wake Forest University School of Law.

Fulmer Group PLLC announces the opening

of their new office located in the historic Buick Building in Automobile Alley, 1101 N. Broadway, Oklahoma City, Oklahoma 73103. They can be reached by telephone at 405-510-0077. Fulmer Group represents individuals and small businesses in insurance bad faith and class action liti-gation, as well as personal injury matters.

Stephen DeGuisti has been named senior vice presi-

dent and general counsel of the BP Lower 48 Onshore business in Houston, Texas. He was previously with PostRock Energy Corp. in Oklahoma City for five years. Before that he was with Crowe & Dunlevy for 25 years. He earned his J.D. from the OU College of Law in 1983.

The Fellers Snider law firm recently welcomed associ-

ate attorney michael a. fa*gan to the firm. He will be based out of the firm’s Okla-homa City office and will focus on workers’ compensa-tion law as well as general civil litigation. He earned his J.D. from the University of Missouri-Kansas City School of Law in 2007.

Curtis Craig and Chris Paul presented a program

at the 2015 Association of Oil Pipe Lines’ Annual Business Conference in Atlanta, Geor-gia, on “Comprehensive Compliance Programs-Issues and Tools.” The presentation covered challenges faced by counsel in dealing with com-pliance in a highly regulated environment, and the tools they use to help their organi-zations stay in compliance and address issues of noncompliance.

Professor marty ludlum recently spoke to several

classes at Chien Hsin Univer-sity in Jhongli, Taiwan. His presentations were “Civil

versus Common Law” and “International Trade Issues.”

Lorrie Corbin Bamford returned as a guest

lecturer at the 2015 Society for Corporate Compliance and Ethics’ Annual Confer-ence in Las Vegas, Nevada. She presented “How to Attract, Empower and Retain Ethical Employees.”

T Douglas stump recently. spoke on “Unusual Ad-

missions at the Border and Beyond” at the 2015 Rocky Mountain Fall Conference hosted by the Colorado Chap-ter of the American Immigra-tion Lawyers Association. He was also a featured speaker at the 2015 AILA National Fall Conference in Minneapolis where he presented materials on “I-601A Provisional Waiv-ers and Practical Guidance for a Successful Application.”

Bryce P. Harp recently spoke at the 2015 Annual

Conference of the Missouri Credit Association. His presen-tation “ ‘To Be or Not to Be’ in Compliance with Oklahoma’s Pre-Lien Notice Requirements” discussed the costly conse-quences of failing to adhere to the notice requirements set forth in Title 42.

How to place an announce-ment: The Oklahoma Bar Journal welcomes short articles or news items about OBA mem-bers and upcoming meetings. If you are an OBA member and you’ve moved, become a part-ner, hired an associate, taken on a partner, received a promo-tion or an award, or given a talk or speech with statewide or national stature, we’d like to hear from you. Sections, committees, and county bar associations are encouraged to submit short stories about upcoming or recent activities. Honors bestowed by other

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2389

publications (e.g., Super Law-yers, Best Lawyers, etc.) will not be accepted as announcements. (Oklahoma-based publications are the exception.) Information selected for publication is printed at no cost, subject to

editing, and printed as space permits. Submit news items via email to:

Mackenzie McDanielCommunications Dept.Oklahoma Bar Association


Articles for the Jan. 17 issue must be received by Dec. 14.


Richard e. Dixon of Dun-can died Sept. 16. He was

born July 13, 1936, and gradu-ated from high school in Enid. He graduated from OU with his bachelor’s degree and earned the rank of first lieu-tenant through his ROTC studies. He served in the u.s. army for two years and remained active in the army reserves for many years. He received his J.D. from the OU College of Law in 1964 and went to work in the trust department of City National Bank in Oklahoma City. In 1968, he moved to Duncan and began working as vice president and trust officer at Security National Bank Trust Company. He served as the Oklahoma Bankers Associa-tion director and president, treasurer of Centennial Dun-can Inc, Duncan Youth Coun-cil and Duncan Industrial Foundation director and trea-surer, First Oklahoma Life Insurance Co. director and president of the DHS Booster Club. Memorial contributions may be made in his name to the Communities Foundation of Oklahoma, Duncan Region-al Hospital Foundation, Little Lighthouse or to a charity of your choice.

James edward Poe of Tulsa died Sept. 26. He was born

Feb. 21, 1935, in Garfield, Arkansas, and received his J.D. from the TU College of Law. During his 55 years of

practice, he was Tulsa County Bar Association past presi-dent, which also recognized him as Outstanding Senior Lawyer and awarded him the Lifetime Achievement Award. He served as an Oklahoma Bar Association board mem-ber and was a recipient of the Neil E. Bogan Award for Pro-fessionalism. He also served 26 years on the Oklahoma Attorneys Mutual Insurance Company board and was a sustaining fellow of the Okla-homa Bar Foundation. He served many civic and chari-table organizations, most notably nine years on the Tulsa County Excise and Equalization Board and the Alzheimer’s Association of Oklahoma.

Richard amatucci of Tulsa died Aug. 16. He was

born May 8, 1934, and gradu-ated from Holy Family Cathe-dral School. after serving in the u.s. army, he received his J.D. from the TU College of Law and was a practicing attorney for 50 years.

Allen Hoffman stocker of Bartlesville died Oct. 6.

He was born April 29, 1926, and graduated from College High School in 1944. after Pearl Harbor, he enlisted in the navy and served in World War II as a radio tech-nician aboard the u.s.s. tutuila in the Pacific. Follow-ing completion of his military service he attended the Uni-

versity of Missouri where he received his J.D. in 1951. He began his legal career in Mis-souri before returning to Bartlesville where he started his own law firm. He was a 64-year member of the Okla-homa Bar Association, an Oklahoma Bar Foundation fellow, served on the Green Country Village Retirement Community board, the Bartlesville Community Cen-ter board and the Family Healthcare Clinic board. He was active in the Oklahoma Democratic Party and many other community and charita-ble organizations. He enjoyed spending time with his wife, children, family and friends and is survived by his daugh-ter and OBA member Susan B. Shields. Memorial contribu-tions may be made in his name to St. Jude’s Children’s Research Hospital, 501 St. Jude Place, Memphis, TN 38105 or to the U.S. Holocaust Memorial Museum, 100 Raoul Wallenberg Pl, SW, Washing-ton, D.C. 20024.

Greg Jenkins of Caney died Sept. 24. He was

born Dec. 23, 1962, and earned his bachelor’s degree from Southeastern Oklahoma University in accounting. He received his J.D. from the OU College of Law in 1988. He served in the district attor-ney’s office for more than 25 years in the criminal division of Atoka, Bryan and Coal

2390 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

counties. He was a member of the Harmony Baptist Church for more than 20 years and a youth Sunday School teacher for 15 years. He enjoyed col-lecting comic books, playing fantasy baseball, watching OU football and playing video games with his son.

Jack e. Phillips of Bartles-ville died Sept. 23. He was

born Aug. 18, 1938, and grad-uated from Duke University with a bachelor’s degree in chemistry. In 1961, he worked in the Washington, D.C. Pat-ent Office for two years which led to his decision to become an attorney. He received his J.D. from George Washington University. In 1964, he relocat-ed to Bartlesville where he began working for Phillips Petroleum Co. in its patent division. He later became associate general patent coun-sel and trademark counsel and remained with Phillips Petroleum Co. until his re-tirement in 1996. He was a member of the First United Methodist Church and served on the church’s board of trust-ees and memorial committee. Other activities included serv-ing on the YMCA board of directors, the Board of Family Crisis & Counseling and the Native American Medical Clinic board. Memorial contri-butions may be made in his name to Project Transforma-tion, c/o Bartlesville First Church, 4715 Price Rd., Bartlesville, OK 74006 or to The Journey Home, 3406 S.E. Kentucky, Bartlesville, OK 74006.

James Carter “Jim” Bass of El Reno died Sept. 26. He

was born July 3, 1938, and graduated from El Reno High School in 1956. after serving in the army as a first lieuten-

ant at Fort Benjamin Harri-son in Indianapolis, Indiana, for two years, he attended the OCU School of Law where he received in J.D. in 1966. He joined his father-in-law in his law firm in El Reno. He was a member of the American Bar Foundation, American Col-lege of Trust and Estate Coun-sel, American College of Trial Lawyers and the Canadian County Bar Association. He was named an El Reno Distin-guished Alumni and was a founder of American Heritage Bank. Active in his communi-ty, he served on the governing boards of Oklahoma Medical Research Foundation and Oklahoma City University. He was a former member of the El Reno City Council and the Park View Hospital Authority board of trustees. Memorial contributions may be made in his name to Oklahoma Medi-cal Research Foundation (OMRF) at 825 NE 13th St, Oklahoma City, OK 73104.

Retired Judge James P. Garrett died Oct. 16. He

was born Jan. 5, 1922, and graduated from Mangum High School and received his undergraduate degree from OU. after graduation, he enlisted and served his coun-try as lieutenant in the u.s. navy during World War II. He was part of the naval forces that invaded norman-dy during the D-Day Inva-sion. When he returned from duty, he re-ceived his J.D. from the OU School of Law. His professional career spanned several decades as an assistant district attorney in Carter County, assistant attor-ney general and practicing private law. He was a member and deacon at the First Baptist Church in Man-gum and a member of the

Village Baptist Church in Oklahoma City. He was also an active member of the Okla-homa Toastmasters Club, Rotary International, Kiwanis International and the BPOE. Memorial contributions may be made in his name to BritVil Community Food Pantry, Oklahoma Medical Research Foundation or a charity of your choosing.

Ruth e. moran of Oklaho-ma City died Oct. 8. She

was born Sept. 8, 1923, and graduated from Stillwater High School. She received her J.D. from the OU College of Law in 1945 and worked for the State of Oklahoma at the State Land Office. In 1949, she and her husband started the law firm of Moran and Moran. She was a member of the Oklahoma Genealogical Society board, Oklahoma His-torical Society board of direc-tors and was appointed by Gov. George Nigh to serve as a member of the Oklahoma Historical Records Advisory Board. In recognition of her outstanding contributions to genealogical research in the state of Oklahoma the Ruth Eager Moran Chair was creat-ed by the Oklahoma Histori-cal Society and she was the first recipient of the award. She was also recognized as one of the pioneers of women lawyers in Oklahoma.

Richard Brooks O’Connor of Oklahoma City died

Oct. 7. He was born Sept. 9, 1929, and graduated from Wentworth Military Academy and The University of Mis-souri. He joined the navy and received his wings in 1955, when he was selected to serve as one of 14 mem-bers of Fighter squadron VF-11, the red rippers, the

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2391

navy’s oldest continuously active fighter squadron. After surviving many dangerous missions, he returned to the United States and enrolled at the OCU School of Law where he received his J.D. He opened his law office, concen-trating in aviation law. He was a prolific reader of all subject matter from philoso-phy to history, was an avid sailor and loved driving imported sports cars.

Harry C. marberry of Oklahoma City died

Sept. 11. He was born May 4, 1920, and attended Southern Illinois University. In 1943, he was called to active duty in the army air Corps and served as a weather observer for three years in scotland and France. After WWII he attended law school and began practicing in oil and gas law. His practice spanned more than 50 years. He was active in politics and helped found the young Republican Party and served as Oklaho-ma Republican Party chair-man in 1960. He enjoyed play-ing golf at Quail Creek Coun-try Club, playing bridge, reading mysteries and travel-ling. Memorial contributions may be made in his name to Westminster Presbyterian

Church or a charity of your choice.

John D. Chiaf sr. of Oklaho-ma City died Sept. 17. He

was born Aug. 1, 1922, in Brooklyn, New York, where he quit school at the age of nine and went to work as a pharmacist assistant to help support his family during the depression. He served in the army air Corps during WWII and after his discharge moved to Oklahoma City where he obtained his GED and received a J.D. from the OCU School of Law in 1952. He practiced law for more than 50 years, with an undy-ing and never-ending passion for helping those in need. Memorial contributions may be made in his name to the Alzheimer’s Association- Oklahoma Chapter.

Jerry D. sokolosky of Okla-homa City died Sept. 27. He

was born April 12, 1937, and received his J.D. from the OU College of Law in 1963. He was a partner with the firm Able Musser Sokolosky and Clark for decades. He was elected to the Oklahoma House of Representatives in 1964 representing the 9th Dis-trict until 1968. President Carter appointed him to the Judicial Selection Committee and he also served as the

National Council on Crime and Delinquency state chair-man and as a hearings judge for the Oklahoma Real Estate Commission. He was the organizing attorney for new charters for five state commu-nity banks and authored numerous articles for the Law Review and the suspense novel Politics Money and Drugs. He was an avid pilot, scuba diver and snow skier. Memorial contributions may be made in his name to St. Gregory’s University, c/o Marketing and Development Dept., 1900 W MacArthur St, Shawnee, OK 74804.

Thomas s. Crewson of Tulsa died Oct. 14. He was

born Oct. 13, 1932, and served in the u.s. army where he attained the rank of second lieutenant. He earned his J.D. from the TU College of Law and was a member of the OBA for more than 50 years. He served as an attorney in private practice, a municipal court judge for the City of Tulsa, a Tulsa County juvenile court referee and as a state district court judge and chief judge of the Tulsa County Juvenile Court. He was active in Boy Scouts of America, Kappa Sigma Fraternity and the Tulsa Ski Club.

2392 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

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Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2393


Practice gratitude

One of the best ways to lower stress is to practice gratitude; and with Thanksgiving just around the corner, now is the perfect time to reflect. Here are nine tips for cultivating gratitude.


be an active citizen

Were you inspired by our Annual Meeting Luncheon speaker, Eric Liu, to get out and be a part of your community? Check out his Citizen University Facebook page for some great infor-mation on how to become more active!


Find your voice

…your social media voice, that is! Attorney at Work is at it again with some great tips on enhancing your law practice. This time, it’s about finding your social media voice and audience so you may gain valuable interac-tion with clients and clients-to-be!


Make your workday easier

Let’s be honest — sometimes work can be daunting. If you’re feeling a little run down or burnt out (or even before that happens), try these tips on making your workday a little simpler.


2394 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

INTERESTED IN PURCHASING PRODUCING & NON-PRODUCING Minerals; ORRI; O & G Interests. Please contact: Patrick Cowan, CPL, CSW Corporation, P.O. Box 21655, Oklahoma City, OK 73156-1655; 405- 755-7200; Fax 405-755-5555; email: [emailprotected].

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WANT TO PURCHASE MINERALS AND OTHER OIL/GAS INTERESTS. Send details to: P.O. Box 13557, Denver, CO 80201.

BRIEF WRITING, APPEALS, RESEARCH AND DIS-COVERY SUPPORT. Eighteen years experience in civil litigation. Backed by established firm. Neil D. Van Dal-sem, Taylor, Ryan, Minton, Van Dalsem & Williams PC, 918-749-5566, [emailprotected].

EXPERT WITNESS – ENERGY. EnEx Energy Advisors is a team of seasoned energy professionals (engineers and lawyers) possessing broad experience in all aspects of oil & gas (production, mid-stream and transporta-tion) and power generation and asset management. Our team has prior expert witness testimony and is ca-pable of assisting with many different aspects of litiga-tion. Visit our website at www.exadvisors.com or call 844-281-ENEX (3639).

BUSINESS VALUATIONS: Marital Dissolution * Es-tate, Gift and Income Tax * Family Limited Partner-ships * Buy-Sell Agreements * Mergers, Acquisitions, Reorganization and Bankruptcy * SBA/Bank required. Dual Certified by NACVA and IBA, experienced, reli-able, established in 1982. Travel engagements accepted. Connally & Associates PC 918-743-8181 or [emailprotected].

OIL AND GAS LITIGATION, BANKRUPTCY, LENDING and TRANSACTION SUPPORT SERVICES. DUE DILI-GENCE for reserve valuations and borrowing base rede-terminations. Custom research, analysis, reporting and due diligence databases to handle complex projects for litigation, acquisition, divestitures, hedges, mortgages workout, restructure and bankruptcy. Contact DEAN HIGGANBOTHAM 405-627-1266, [emailprotected], www.gld7.com.

HanDWrItInG IDentIFICatIOn POlYGraPH eXamInatIOn

Board Certified Court Qualified Diplomate — ABFE Former OSBI Agent Life Fellow — ACFEI FBI National Academy

Arthur D. Linville 405-736-1925

aPPeals and lItIGatIOn suPPOrtExpert research and writing by a veteran generalist who thrives on variety. Virtually any subject or any type of project, large or small. NANCY K. ANDER-SON, 405-682-9554, [emailprotected].

Creative. Clear. Concise.

OF COunsel leGal resOurCes — sInCe 1992 — Exclusive research & writing. Highest quality: trial and appellate, state and federal, admitted and practiced U.S. Supreme Court. Over 20 published opinions with numerous reversals on certiorari. maryGaye leBoeuf 405-728-9925, [emailprotected].


LUXURY OFFICE SPACE - Four offices for lease, $670, $690 furnished and two at $870 in the Esperanza Office Park near NW 150th and May in OKC. Lease includes: Fully furnished reception area; receptionist; conference room; complete kitchen; fax; high-speed internet; building security; and, free parking. Please contact Gregg Renegar at 405-285-8118.

OFFICE SPACE FOR LEASE IN ESTABLISHED FIRM. Space located in Boulder Towers at 1437 S. Boulder Ave, Suite 1080, Tulsa, OK. Space includes two confer-ence rooms, kitchen, reception area, security and free parking. $1,000 per month. Contact Robert Williams at 918-749-5566 or [emailprotected].

EXECUTIVE OFFICE SUITE. North Classen Boule-vard. Furnished. Rent includes parking and reception-ist. Call Kari 405-843-9923.

COntraCt leGal serVICes – Lawyer with highest rating and with 30+ years’ experience on both sides of the table is available for strategic planning, legal research and writing in all state and federal trial and appellate courts and administrative agencies. Admitted and practiced before the United States Supreme Court. Janice M. Dansby, 405-833-2813, [emailprotected].

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www.HomeStudyServices.com Full study and report done in 3 weeksBackground checks only in 3-5 days

David Worthington, Ph.D.405-210-4094

Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2395

POsItIOns aVaIlaBle

POsItIOns aVaIlaBle

Seeking exceptionally qualified LAWYERS AND LAW STUDENTS who have a desire to LEAD, be CHAL-LENGED and gain extensive court room knowledge and experience while serving as a Marine Officer and JUDGE ADVOCATE GENERAL. Full time and part time Officer commissioning opportunities. JAG BO-NUS and FINANCIAL AID for law school available. Please call the Marine Officer Selection Team at 405-447-4809 for more information.

NATIONWIDE LAW FIRM SEEKS JUNIOR ASSOCI-ATE with 0-3 years experience. Candidates must be self-motivated and detail-oriented. Competitive com-pensation package. Please send résumé and cover let-ter to Klepper Law Firm, attn.: Tim, PO Box 271320 OKC, OK 73137.

OKC AV RATED LAW FIRM seeking associate with ex-cellent litigation, research, and writing skills, 1-5 years’ experience for general civil/commercial defense practice, health care law. Must have solid litigation experience for all phases of Pretrial discovery and Trial experience with excellent research and writing skills. Submit a confidential résumé with references, writing sample and salary requirements to “Box E,” OBA PO Box 53036, OKC 73152.

NORMAN LAW FIRM IS SEEKING sharp, motivated attorneys for fast-paced transactional work. Members of our growing firm enjoy a team atmosphere and an energetic environment. Attorneys will be part of a cre-ative process in solving tax cases, handle an assigned caseload, and will be assisted by an experienced support staff. Our firm offers health insurance benefits, paid va-cation, paid personal days, and a 401K matching pro-gram. Applicants need to be admitted to practice law in Oklahoma. No tax experience necessary. Submit cover letter and résumé to [emailprotected].

OKLAHOMA TITLE ATTORNEY - EDMOND AREA. Red Stone Resources, LLC specializes in acquiring oil and gas minerals. We are looking for a Licensed Okla-homa Attorney to perform courthouse title examina-tion. Responsibilities will include, but not be limited to: efficiently reviewing and examining title research, identifying title defects and completing curative ac-tions as required. MUST have experience and be well versed in Oil and Gas Law in Oklahoma. Please email résumé to [emailprotected] or [emailprotected] or fax to 405-562-1208.

ENID, OK ATTORNEY SEEKS ATTORNEY FOR OF-FICE SHARING. No experience required. Negotiable rent. Copier/fax machine, Internet, supplies and staff are included in rent. Case overflow referrals available. Experienced attorney available for assistance. Please contact Russell Singleton at 580-234-6000.

SHARE OFFICE SPACE IN OIL CENTER WEST with three attorneys. Includes conference room, reception, copier and fax. Contact: [emailprotected].

OFFICe sHare


GREAT OFFICE SPACE FOR LEASE formerly occu-pied by a state agency. 1500 sq ft which includes 4 of-fices, built in reception area, conference room, coffee bar and document storage area. Centrally located in OKC across the street from the highway patrol. 201 NE 38th Terr #3. Please call Jacqueline at 405 787-3030 for more information. MJH Properties.

PREMIUM EDMOND OFFICE SPACE FOR LEASE IN LAW FIRM BUILDING. Lease includes parking, inter-net, conference room use, kitchen, wifi, $800 month. Located west side of Boulevard a mile north of the Kil-patrick Turnpike. Contact us at 405-285-8588 to sched-ule a showing.


Do you want a fulfilling career where you can really make a difference in the lives of people? Are you fer-vent about equal justice? Does a program with a pur-pose motivate you? Legal Aid Services of Oklahoma Inc. (LASO) is searching for an attorney for its Ard-more Law Office.We are a statewide, civil law firm providing legal ser-vices to the impoverished and senior population of Oklahoma. With twenty-three offices and a staff of 155+, we are committed to the mission of equal justice.Ardmore is located south of Oklahoma City metro just off of I-35 and is half way between Oklahoma City and Dallas. Ardmore is a progressive, attractive city bustling with activity. Founded before statehood, its history is diverse and rich. Ardmore was born with the establishment of the Santa Fe Railroad in 1887 while Oklahoma was still Indian Territory. Ini-tially, the community’s roots were agricultural with cotton as the primary crop. At one point, it boasted the largest inland cotton market in the United States.This was the beginning of a city destined to become one of the premiere towns in the state of Oklahoma.The successful individual will possess a passion for justice and empathy for impoverished individuals; be computer literate and willing to learn and contribute to a positive work environment. In return, the em-ployee receives a great benefit package including paid health, dental, life insurance plan, a pension, and generous leave benefits. Additionally, LASO offers a great work environment and educational/career opportunities.To start making a difference, complete our applica-tion and submit it to Legal Aid Services of Oklahoma.The online application can be found:https://legalaidokemployment.wufoo.com/forms/z7x4z5/ Print applicationhttp://www.legalaidok.org/documents/388541 Employment_Application_Revised_10.2008.pdf

Legal Aid is an Equal Opportunity/ Affirmative Action Employer.

2396 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

THE OKLAHOMA BAR ASSOCIATION HEROES pro-gram is looking for several volunteer attorneys. The need for FAMILY LAW ATTORNEYS is critical, but at-torneys from all practice areas are needed. All ages, all counties. Gain invaluable experience, or mentor a young attorney, while helping someone in need. For more information or to sign up, contact Gisele Perry-man, 405-416-7086 or [emailprotected].

FAMILY LAW FIRM SEEKS ATTORNEY with mini-mum one year’s experience. Résumé; writing sample and two references required. Mail to “Box CD,” Okla-homa Bar Association, PO Box 53036, Oklahoma City, OK 73152.

THE OKLAHOMA ATTORNEY GENERAL’S OFFICE is seeking an attorney for the Criminal Appeals Unit. The Criminal Appeals Unit represents the state in the criminal appeals process to ensure that the decisions rendered by judges and juries are upheld in the appellate courts. The successful candidate will be responsible for representing the State in criminal appellate cases before the Oklahoma Court of Criminal Appeals and represent-ing prison wardens in federal habeas actions. Applicants should have strong research and writing skills and ac-complished oral advocacy skills. Applicants must be a licensed attorney in the State of Oklahoma with zero to three years of experience in the practice of law. A writing sample must accompany resume to be considered. Excel-lent benefits. Salary is commensurate with experience. EOE. Send résumé and a writing sample to [emailprotected].

FULL SERVICE, AV-RATED, DOWNTOWN TULSA LAW FIRM seeks associate attorney with 3 - 6 years’ commercial litigation experience. Solid deposition and trial experience is a must. Our firm offers a competitive salary and benefits, with bonus opportunity. Submit résumé and references to “Box P,” Oklahoma Bar As-sociation; PO Box 53036; Oklahoma City, OK 73152.

GRAVES McLAIN PLLC, a Tulsa personal injury law firm, seeks an ASSOCIATE ATTORNEY with 2-5 year experience in civil litigation. Salary commensurate with experience. Complete benefits package with 401(k), Profit Sharing, and Medical Insurance. Please send résumé via email to [emailprotected].

SOUTH OKC FIRM with a very busy and diverse prac-tice seeks an attorney that is motivated and has exper-tise to practice in family law, estate planning, wills, trusts, and bankruptcy. Other opportunities within the firm include, briefing, general litigation work (deposi-tions, client prep), and assisting with employment re-lated discrimination cases. If interested please send a résumé: Attention Office Manager to PO Box 890420 OKC, OK 73189.

LITIGATION ATTORNEY NEEDED WITH 3+ YEARS OF EXPERIENCE for AV-rated mid-sized NW OKC law firm to help with litigation concerning oil & gas ti-tles and real property titles, and probates. Send cover letter and résumé to “Box S,” Oklahoma Bar Associa-tion; PO Box 53036; Oklahoma City, OK 73152.

GROWING AV RATED DOWNTOWN OKLAHOMA CITY LAW FIRM seeks an attorney with 3-5 years of experience in commercial litigation and transactions. Oil and gas and administrative law experience a plus. Compensation DOE. Great benefits and friendly atmo-sphere. Submit confidential résumé, references, writing sample and salary requirements to OklahomaCity [emailprotected].

GRAVES McLAIN PLLC, a Tulsa personal injury law firm is seeking an OFFICE MANAGER to oversee HR matters, insurance, bookkeeping with QuickBooks, and marketing and employee oversight. Position re-quires experience in management as law office admin-istrator. Complete benefits package with 401(k), Profit Sharing, and Medical Insurance. Salary commensurate with experience. Please send résumé via email to [emailprotected].

POsItIOns aVaIlaBle POsItIOns aVaIlaBle

COFFEY, SENGER & MCDANIEL, PLLC seeks a re-search and writing attorney with 4 to 7 years of experi-ence. Will also hire on a contract basis. Please submit résumé and writing sample to [emailprotected].


“This nation was founded by men of many nations and backgrounds. It was founded on the principle that all men are created equal, and that the rights of every man are di-minished when the rights of one man are threatened …”

John F. KennedyDo you want to make a real difference in the lives of people? Are you fervent about equal justice? Legal Aid Services of Oklahoma (LASO) is a nonprofit law firm dedicated to the civil legal needs of low-income persons. If you are passionate about poverty law, LASO is the place for you, offering opportunities to make a difference. We have 22 law offices across Okla-homa, and we are looking for passionate attorneys.LASO offers a competitive salary and a generous benefits package, including health, dental, life, pen-sion and an LRAP. Additionally, LASO offers a great work environment and educational/career oppor-tunities.The online application can be found:https://legalaidokemployment.wufoo.com/forms/ z7x4z5/

Legal Aid is an Equal Opportunity/ Affirmative Action Employer

CURRENTLY SEEKING LITIGATION ATTORNEY AND LEGAL ASSISTANT with at least 2 years litiga-tion experience needed to assist Enid Law Firm with busy civil & criminal litigation/trial practice. Send résumé, with references to: PO Box 5188, Enid, Okla-homa 73702. Fax to 580-233-4443 or Email to: [emailprotected].


Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2397

IN-HOUSE TRANSACTIONAL ATTORNEY. Estab-lished, stable, and growing corporation headquartered in Oklahoma City is seeking a transactional attorney with one to three years’ of experience for a staff counsel position in its Real Estate Department. This full-time position will work closely with other members of the Real Estate Department and provide legal representa-tion and counsel to management, business personnel, and affiliate companies primarily in the areas of com-mercial leasing, real estate acquisitions and commercial transactions. The ideal candidate will possess a posi-tive attitude, initiative, excellent interpersonal skills, and the ability to work effectively in a team environ-ment. A Juris Doctor with a license in good standing to practice law is required. The company offers excellent benefits and values a positive work/life balance. To be considered for this position, applicants must provide a cover letter describing the applicant’s particular inter-est in the position, salary requirements, and a current résumé to Susan Walker at [emailprotected] by November 30, 2015.

CHILD SUPPORT SERVICES, a division of the Okla-homa Department of Human Services. DIRECTOR of Child Support Services. The Oklahoma Department of Human Services (DHS) is seeking a full-time unclassi-fied Director of Child Support Services (CSS), with of-fices in Oklahoma City, Oklahoma. DHS is seeking an experienced executive to lead, direct and coordinate a diverse and dynamic program division. The Director of CSS must be able to lead and manage a large statewide child support enforcement division, motivate employ-ees to accomplish organizational objectives and super-vise high-level managers. The Director of CSS must have sound ethical business judgment and be able solve complex and diverse issues involving program administration, employees, clients, customers and state and federal partners to achieve expectations of excel-lence in service delivery to the citizens of Oklahoma. The successful candidate will coordinate multiple pri-orities across program lines, analyze state and federal law and regulations and develop efficient policies, practices and plans. The Director of CSS must have su-perior oral and written communication skills. DHS pre-fers candidates with a Juris Doctorate or Master’s de-gree with eight years professional level experience in legal management, human services or closely related work, including four years in an administrative or su-pervisory capacity: or an equivalent combination of education and experience. To apply, please visit www.okdhs.org/careers. Complete the online application and submit through Human Capital Management (HCM). Applications must be received no later than 11:59 p.m. on December 4, 2015. For information on how to apply for this employment opportunity, please contact Andrea Paulk-McKeown at 405-521-6395, or by email at [emailprotected]. THE STATE OF OKLAHOMA IS AN EQUAL OPPORTU-NITY EMPLOYER.

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MAKE A DIFFERENCE AS THE ATTORNEY for a Domestic Violence Survivor

Do you want to ensure that survivors of domestic violence obtain justice and an end to violence in their lives for themselves and their children? Are you fervent about equal justice? Legal Aid Services of Oklahoma (LASO) is a nonprofit law firm dedi-cated to the civil legal needs of low-income persons. If you are passionate about advocating for the rights of domestic violence survivors, LASO is the place for you, offering opportunities to make a difference and to be part of a dedicated team. LASO has 22 law offices across Oklahoma, and LASO has a rare open-ing for a passionate attorney to represent domestic violence survivors in LASO’s Oklahoma City Law Office. The successful candidate will have 3+ years of experience in the practice of Family Law, with meaningful experience in all aspects of representing survivors of domestic violence.LASO offers a competitive salary and a very gener-ous benefits package, including health, dental, life, pension, liberal paid time off and loan assistance repayment. Additionally, LASO offers a great work environment and educational/career opportunities.The online application can be found:https://legalaidokemployment.wufoo.com/forms/z7x4z5/ Websitewww.legalaidok.org

Legal Aid is an Equal Opportunity/ Affirmative Action Employer

COFFEY, SENGER & McDANIEL, PLLC seeks a litiga-tion attorney with 3 to 7 years of experience for their South Tulsa and/or Oklahoma City office. Trucking litigation experience is preferred. Please submit résu-mé and writing sample to [emailprotected].

OKLAHOMA CITY LAW FIRM IS SEEKING AN ES-TABLISHED ATTORNEY with significant experience with property and casualty insurance matters, including coverage litigation in state and federal court. Writing samples required. Send resume and writing samples to “Box X,” Oklahoma Bar Association, PO Box 53036, Oklahoma City, OK 73152.


STEIDLEY & NEAL, PLLC, is searching for an associ-ate attorney with excellent research and writing experi-ence for its’ Tulsa office. Competitive salary and other benefits commensurate with level of experience. Looking for a motivated research and writing candidate interest-ed in civil litigation, with an emphasis in insurance de-fense. Would consider hiring on a contract basis. Appli-cations will be kept in strict confidence. Send resume and writing sample to Steidley & Neal, located in CityPlex Towers, 53rd Floor, 2448 E. 81st St., Tulsa, OK, 74137, attention Dwain Witt, Administrator.


2398 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015

STEIDLEY & NEAL, PLLC, seeks an associate attorney for its McAlester office to assist in civil litigation. This position primarily involves assisting in civil rights and general insurance defense matters, including some re-search and writing, discovery, taking depositions and trials. Competitive salary and other benefits commen-surate with level of experience. Would consider recent graduates. Please submit a resume and salary require-ments to Steidley & Neal, P. O. Box 1165, McAlester, OK, 74502, attention Dwain Witt, Administrator.

ESTABLISHED LAW FIRM IN TULSA IS LOOKING TO HIRE AN ASSOCIATE ATTORNEY or Law Student who has experience/knowledge in Personal Injury (car/motorcycle wrecks, etc.), Workers’ Compensation and Social Security. Strong writing and legal research skills are required, able to prepare and review discov-ery, research and write memos and briefs, be familiar with medical knowledge and outlines, be self-motivat-ed and willing to help out in all situations, including client contact, trial preparations, depositions and pos-sible court appearances (depending on knowledge and certifications). Benefits and other office matters will be discussed upon application/review. Please submit in-quiries and resumes in confidence with salary require-ments included to “Box N,” Oklahoma Bar Association, PO Box 53036, Oklahoma City, OK 73152.

THE NATIONAL CHRISTIAN FOUNDATION HEART-LAND is seeking an attorney to fill the role of Vice President of Outreach. This role will be based in Okla-homa City, OK. This person will have strong relational skills, public speaking and writing skills. A strong com-ponent of this role will be to build relationships in the local community to grow donor advised funds and non-liquid gifting in the community. The National Christian Foundation Heartland is an affiliate of NCF, the 12th largest charity in the country and the largest Christian grant making organization in the country. Please email an initial inquiry with resume and 3 refer-ences to Rick McGlocklin at [emailprotected].— Rick McGlocklin COO/CFO, Nation-al Christian Foundation Heartland; 706 N. Lindenwood Dr., Olathe, KS 66062; [emailprotected]; 913-310-0279.

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Please note: prices will increase Jan. 1, 2016. Visit www.okbar.org/members/barjournal/advertising.aspx for 2016 rates.

REGULAR CLASSIFIED ADS: $1 per word with $35 minimum per insertion. Additional $15 for blind box. Blind box word count must include “Box ___,” Oklahoma Bar Association, PO Box 53036, Oklahoma City, OK 73152.”

DISPLAY CLASSIFIED ADS: Bold headline, centered, border are $50 per inch of depth.

DEADLINE: See www.okbar.org/members/BarJournal/ advertising.aspx or call 405-416-7018 for deadlines.

SEND AD (email preferred) stating number of times to be published to:

[emailprotected], ormackenzie mcDaniel, Oklahoma Bar association, PO Box 53036, Oklahoma City, OK 73152.

Publication and content of any advertisem*nt are not to be deemed an endorsem*nt of the views expressed therein, nor shall the publication of any advertisem*nt be considered an en-dorsem*nt of the procedure or service involved. All placement notices must be clearly nondiscriminatory.

DO nOt staPle BlInD BOX aPPlICatIOns.

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Vol. 86 — No. 30 — 11/21/2015 The Oklahoma Bar Journal 2399

Save the Date! OBA Solo & Small Firm Conference

Choctaw Casino Resort, Durant June 23 – 25, 2016

2400 The Oklahoma Bar Journal Vol. 86 — No. 30 — 11/21/2015


What Happened to the Dress Code?

By R. Robyn Assaf

Admittedly it has been decades since I graduated from law school, passed the bar and was sworn into the state and federal courts. For those events, I knew a busi-ness suit was required. Dur-ing law school we were instructed that professional attire aka suits were manda-tory during oral argument competitions, moot court etc. I applied that information to real court appearances and believe that our professional standing as attorneys and officers of the court calls for the wearing of a suit or pro-fessional dress. In the inter-est of full disclosure, I am a female. To my understanding wearing a dress to court still means including a jacket to meet the business attire stan-dard. Recently I have seen outfits in court that looked more like yoga clothes than professional attire. There is always a black jacket behind my office door to put over a dress or slacks in case of an unscheduled court appear-ance. I would not feel right showing up like I am having a “casual Friday” when the judge is in a formal robe.

So why are so many young attorneys dressed down in pro-fessional settings? Are profes-sional looking clothes too expensive? Anyone who has

looked at the price of designer jeans and shirts knows those are much more pricey than a basic suit on sale. Women’s suits can be bought for less than the price of a single Polo shirt. The same price points apply to a man’s basic blue

blazer and slacks. Suits and dress suits are always on sale at the mall, online or can easily be found at thrift or consignment shops. A couple of suits with different shirts or tops can go a long way.

Evidently the British rec-ognized the problem with the dress code way back when and adopted the robe for the barristers appearing in court. Hollywood still portrays lawyers in suits and professional attire (although sometimes too short or low cut) so the blame is not on them. With firms and companies adopt-ing a casual dress code, or none at all, it appears that “dress for success” has become a thing of the past. Lawyers are professionals and the court should never adopt a casual dress code.

It is fine to dress in jeans or khakis with T-shirts or sweats while in the office performing research and writing. I’m all for being comfortable when tackling a

tedious legal research task. However, when scheduled to appear in court you are a pro-fessional and should dress accordingly.

Ms. Assaf practices in Oklahoma City.

DEC. 10, 2015Oklahoma Bar Center

DEC. 11, 2015OSU Tulsa

This course has been approved by the Oklahoma Bar Associa-tion Mandatory Continuing Legal Education Commission for 7 hours of mandatory CLE credit, including 2 hours of ethics.

TUITION: $225 for early-bird registrations with payment re-ceived at least four full business days prior to the seminar date; $250 for registrations with payment received within four full business days of the seminar date. Walk-ins $275. To receive a $10 discount for the live onsite program, register online at http://www.okbar.org/members/CLE. The Oklahoma City pro-gram will also be webcast (pricing varies).




8:30 a.m. Registration

9 a.m. Introduction: The Car Negotiation Story

9:10 a.m. Discuss Latz’s Golden Rules of Negotiation

10:30 a.m. Break

10:45 a.m. Negotiation Ethics: Part I

11:15 a.m. Discuss Negotiation Strategies

Noon Lunch (provided)

1 p.m. Discuss Negotiation Strategies

1:30 p.m. Prepare to Negotiate Simulation

2 p.m. Negotiation Simulation

2:30 p.m. Analyze Negotiation Simulation

2:45 p.m. Break

3 p.m. Discuss Negotiation Strategies

4 p.m. Negotiation Ethics: Part II

4:30 p.m. Adjourn


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P 405 471 5380 | 800 318 7505 F 405 471 5381



(PDF) Amendments to UCC Article 9 • Oklahoma Family Wealth ... · 9:00 Form Changes Effective December 2015 Brian Huckabee, Huckabee & Huckabee, Inc. ... Amendments to UCC Article 9 - PDFSLIDE.NET (2024)


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