1April 2015

THE RULER’S EXECUTIVEORDERS WERE A PROBLEM …for the rebellious house of representatives.Other concerns were the ruler’s elevation offoreign born individuals without regard tothe impact on the resident population andthe ruler’s insistence upon arbitrary taxes, aswell as his confiscatory policies, not tomention the ruler’s conflict with the Jews.Ultimately, the house of representativespassed a bill that the ruler could not vetoand for a time it seemed that the conflictwas resolved.

Does that sound sort of familiar? Yes, no,maybe? From INVENTING FREEDOM, byDaniel Hanna: “On June 15, 1215, in a fieldnear Windsor an event of truly planetarysignificance took place. For the first time,the idea that governments were subject to thelaw took written, contractual form. The king[King John] put his seal to a document that,from that day to this, has been seen as thefoundational charter of Anglosphere liberty:Magna Carta.” Unfortunately, within six

months King John disregarded the GreatCharter (or Magna Carta) and plungedEngland into the civil war that the barons(precursors to England’s representativehouse of Parliament) sought to avoid. But, asHannan stated in INVENTING FREEDOM,“… just as that war seemed to be on thepoint of stalemate, the providentially badmonarch (King John) rendered one lastservice to England by dying opportunely inNewark Castle in October 1216 (almostcertainly of dysentery, and sadly not, as onesource claims, from a surfeit of peaches).”

For any of you who may be fact checkers, feelfree to confirm that King John broughtforeign nationals into his circle of advisors,which caused both resentment in the baronsand high-lighted for the general populationthe national identity of Englanders. You willalso find that King John imposed heavy taxburdens on England to finance his militaryefforts to reclaim lands lost in prior wars andthat he also imposed confiscation of landsand holdings of widows for the samepurpose. With regard to the Jews, there wasa relatively small population of Jews inEngland at this time but they served asfinanciers, which gave rise to conflicts inwhich King John was involved.

So, what was the Great Charter about? FromProf. David Carpenter’s book MAGNA CARTA:“The Charter was above all about money. Itsoverwhelming aim was to restrict the king’sability to take it from his subjects. Anothermajor thrust was in the area of law andjustice. The Charter wanted to make theking’s dispensation of justice fairer and moreaccessible, while at the same time preventinghis arbitrary and lawless treatment ofindividuals.”

Even though most of us remember SirWilliam Blackstone for his treatiseCommentaries on the Laws of England (1765- 1769), he is also credited with establishinga numbering system for the provisions of theMagna Carta. Chapters 40 and 39 are the twochapters that, in my opinion, cause theMagna Carta to still be revered today.Chapter 40 simply states: “To no one will wesell, to no one will we deny or delay, right orjustice.” Chapter 39 states: “No free man isto be arrested, or imprisoned, ordisseised, or outlawed, or exiled, or inany way destroyed, nor will we goagainst him, nor will we send againsthim, save by the lawful judgement ofhis peers or by the law of the land.” Inthis context and the language of the time,“disseised” means dispossessed of propertyand “go against” means taking action againstthem by force of arms. “Law of the land”requires a bit more explanation.

According to Hannan, the Magna Carta’sreference to “the law of the land” recognizedthe concept of common law. “Being the lawof the land, rather than of the King, Anglo-Saxon common law had four furtherproperties that have served, to this day, todistinguish it from most civil law systems.First, it laid particular emphasis on privateownership and free contract. … Second,common law is based on the notion thatanything not expressly prohibited islegal. There is no need to get the permissionof the authorities for a new initiative. Third,the invigilation [keeping watch over orenforcement] of the law of the land waseverybody’s business. The policeman wasand is a citizen in uniform, not an agent ofthe state. He has no more legal powers thananyone else, except to the extent that those

continued on page 2

A Message From the PresidentD. Kenyon (“Ken”) Williams, Jr.

2 April 2015

powers have been temporarily andcontingently bestowed on him by a magistrate.… Finally, and most importantly, the fact thatthe law was national rather than monarchicalimplied the need for an ultimate populartribunal to determine it.” (Bold emphasisadded) This last concept is based upon theprincipal that only a representative body, suchas an elected Parliament, should be allowed todetermine the common law of England.Hannan quoted William Blackstone regardingcommon law: “Since the law is in England thesupreme arbiter of every man’s life, liberty,and property, courts of justice must at all timesbe open to the subject, and the law be dulyadministered therein. The common lawdepends not upon the arbitrary will of anyjudge; but is permanent, fixed, and unchange-able, unless by authority of parliament.”

So, how has the Magna Carta influenced theUnited States of America? William Penn,founder of Pennsylvania, wrote TheExcellent Privilege of Liberty and Property:being the birth-right of the Free-BornSubjects of England, where he stated:

“In other nations, the mere will of the Princeis Law, his word takes off any man’s head,imposeth taxes, or seizes any man’s estate,when, how and as often as he lists. InEngland, each man has a fixed Fundamental

Right born with him, as to freedom of hisperson and property in his estate, which hecannot be deprived of, but either by hisconsent, or some crime, for which the lawimposed such a penalty or forfeiture.”

The final declaration of the first ContinentalCongress in 1774 listed many of the samegrievances addressed by Magna Carta, suchas entitlement to life, liberty and property;freedom from arbitrary taxes; freedom fromarrest and trial without due process, takingof property without due process, and mosttellingly, entitlement to the common law ofEngland and to the principles of the Englishconstitution, i.e. the Magna Carta.

According to Justice William Brennan “Thefirst eight amendments to our FederalConstitution, our explicit Bill of Rights, owesits parentage to Magna Carta; and Americansregard the enforcement of thoseamendments as the Supreme Court’s mostimportant and demanding responsibility.”(1985 Rededication Speech at the AmericanBar Association’s Memorial at Runnymede)Specifically, a portion of the Fifth Amendmentto our Constitution (“No person shall be heldto answer for a capital, or otherwiseinfamous crime, unless on a presentment orindictment of a Grand Jury, … nor shall bedeprived of life, liberty, or property without

due process of law; …”) seems to echoChapter 39 of the Magna Carta.

Even though King John repudiated the MagnaCarta shortly after its creation in 1215, theGreat Charter was revised and re-issued in1217 and again in 1297. Even so, 1215 isremembered and celebrated as the birth ofthe Magna Carta, which brings us to thetheme of our Law Day 2015, i.e. “MAGNACARTA, Symbol of Freedom Under Law.” TheAmerican Bar Association has suggested, andour Association has concurred, that Law Daythis year will be a celebration of the 800thanniversary of the Rule of Law.

Our hard working Law Week Committee,passionately led by Chair (Judge) DamanCantrell, has planned a great Law Week thisyear! Please help the Committee to make thisLaw Week one of the best ever by andthrough your personal involvement in theplanned activities (see the LAW WEEKinformation pages in this issue of TULSALAWYER) and through encouraging citizenswith whom you have contact to be involvedas well.

Thank you for your service!

D. Kenyon (“Ken”) Williams, Jr.TCBA President 2014 - 2015

President’s letter continued

3April 2015

The Tulsa County Bar Association ispleased to announce the HonorableWilliam C. (“Bill”) Kellough has beenawarded the Golden Rule Award for thesecond quarter of 2015.

Bill is a 1975 graduate of theUniversity of Texas School of Law atAustin, and began his career in privatepractice in Tulsa, Oklahoma, with theold “Blackstock” law firm. After leavingthe Blackstock firm, Bill was a

shareholder and former president of the Boone, Smith, Davis, Hurst &Dickman law firm in Tulsa. For over 30 years, he specialized inlitigation, health care mergers, acquisitions and consolidations, as wellas estate planning, probates and guardianships. Bill is a formerpresident of the Oklahoma Health Lawyers Association and has servedas vice president of the Tulsa County Bar Association.Bill is truly a scholar. His legal writings have included articles

published by the Tulsa Law Journal and the Tenth Circuit Court ofAppeals. In 2003, he co-authored the book Building Tulsa: Lawyersat Work, a history of the Tulsa County Bar Association. He has beenlisted in Best Lawyers of America in three categories of expertise since1995-Estate Planning, Healthcare Law and Civil Litigation. In 1991, hereceived a commendation from the Tulsa County Bar Association forimplementing Legal Services for the Elderly, a lawyer volunteerprogram. He also served as an unpaid advocate in the Tulsa Lawyersfor Children program.

A native of Tulsa, Bill has been a civic leader in the Tulsa communityfor over 30 years. He has served as a trustee or volunteer legal counselon numerous boards and foundations. He is a former president of theGilcrease Museum Association and the museum's Endowment Trust.He was active in the Tulsa City County Library activities for many yearsand served as president of the Library Trust, chairman of the Peggy V.Helmerich Distinguished Author Award committee, and chairman ofthe Library Commission for the City of Tulsa and Tulsa County. Bill isalso a graduate of Leadership Oklahoma, Class XVII.In the last seven years, Bill has presided over 135 jury trials with a

Criminal Felony docket. Voted by his peers to serve as Presiding Judgeto fill out the term of Judge Tom Thornbrugh in 2011, he subsequentlyserved a full two-year term in that position. During his tenure aspresiding judge, the Court was awarded a $300,000 planning grantfrom the U.S. Justice Department for the creation of a DomesticViolence Court. He recently served on the Grant Planning Council.Judge Kellough initiated the District Court Interpreter Certificationprogram and it is now being used as a model for the state of Oklahoma.Since 2007, he has been a member, and served as chairman for theTulsa County Community Sentencing Planning Council. He also servedon the board of directors for the Oklahoma Trial Judges Association. In2009, Judge Kellough was honored with the Earl Sneed award forExcellence in Legal Writing by the Oklahoma Bar Association.Bill is truly deserving of this award, and not only is he an outstanding

attorney, he is an outstanding citizen. Congratulations William C.(“Bill”) Kellough.

Now Open to the Public: The U.S. Courts Library: The newlyrenovated 10th Circuit Court of Appeals Library is located on the 4thfloor of the Page Belcher Federal Building. Why should a lawyer visit the library? The library offers many resourcesand benefits:

• access to USCA, CFR, state statutes from all six Tenth Circuit statesand treatises in most subjects (for on-site library use only)

• access to legislative history materials, Restatements, AmJur, etc.(for on-site library use only)

• access to Wi-Fi, for Westlaw and Lexis research (passwordrequired)

• use of a conference table and lounge area• first 30 photocopies are free• research assistance from an experienced law librarian with JD• quiet, pleasant place to work

U.S. District Court Attorney Lounge: The Attorney Lounge is locatedjust down the hall from the law library. Available exclusively to attorneysand legal assistants, this space was created so that attorneys will have acomfortable place to check email, have a snack or simply relax whilewaiting for court to resume.The Attorney Lounge offers many complimentary amenities:

• workstations with wired or wireless Internet access (guests mustuse their own laptop)

• kitchenette with refrigerator, sink, and microwave • TV with cable access and comfortable lounging area

Location and Hours of Operation: The Page Belcher Federal Buildingis located at 333 West 4th Street, Tulsa, OK. The library, the lounge,and the Court Clerk's Office are located on the 4th Floor, and all areopen Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding FederalHolidays.

The Honorable William C. KelloughRecipient of the 2nd Quarter TCBA Golden Rule AwardBy Larry D. Leonard

News from the U.S. District Court for the Northern District of Oklahoma

4 April 2015

Part One: The Devil’s AdvocateBetween the two of them, Burt Holmes and Clayton Vaughn know

everybody in town, and more about how things really work here thansome would prefer. Four years ago, Burt publicly backed an entire slateof recommended replacements for the tiresome debating club thenserving as the City Council. Within days, a shameless wag at the CaféCubana on Cherry Street began to wonder out loud whether Burt wouldbecome a modern day reincarnation of New York’s Boss Tweed or KansasCity’s Tom Pendergast, who Burt might have admired in his youth. Thatsame Cubanan thought back with some bitterness to the day when, at agethirteen, he had personally delivered Burt’s evening newspaper on timethrough a teeth-chattering ice storm only to be handed a single coin.

I still have that nickel. In the years since, Burt has become a model of generosity,

entrepreneurship and public service. A few years after graduating fromthe University of Tulsa, Burt started the Holmes Organisation, whichspecializes in insurance, employee benefits and wealth management.Seventeen years ago, Burt sold the business, but still consults there. Healso co-founded and named the QuikTrip Corporation, where he sits onthe board of directors. Burt has been, and in many instance remainsactively involved in such organizations as the TU Board of Trustees; theGilcrease Museum Association, the TU Alumni Association; Family andChildren’s Services; Tulsa Philharmonic, Palmer Drug Abuse Program,Thornton Family YMCA, Greenwood Cultural Center and PhillipsTheological Seminary. He also serves on the board of directors of FirstOklahoma Bank, whose distinctive new headquarters is already a Jenkslandmark.

Burt’s involvement in the group which established the Tulsa BotanicGarden is emblematic of his style. Someone else envisioned the garden in2007, but from the very beginning, Burt has been engaged in staffing,financing and promoting the project, which will have a unique one-of-a-kind design.

Two years ago, Burt was appointed to serve with one other non-lawyerand five attorneys on the Professional Responsibility Commission, whichconsiders and investigates alleged grounds for professional discipline orthe alleged incapacity of any lawyer called to its attention. The other non-lawyer is a former CIA agent and former OBA investigator now serving aschief of security for a large Oklahoma City oil company. Burt and I spokerecently about this experience.

The Commission meets ten times a year and is chaired by one of thefive lawyer-members. Typically, the meeting begins with appearances bydisciplined lawyers reporting on their progress after appearing before theCommission. Next, the Commission considers eight to fifteen casesscheduled for discussion and recommendation.

While the public might perceive the purpose of the commission asridding the profession of bad apples, Burt emphasized that this is notalways the case.

Years ago, discipline cases considered meritorious were referred onto the Professional Tribunal for adjudication and all other cases weresimply dropped. But now there is a middle ground. In 2003, the Courtadopted a discipline diversion program for minor transgressions.Generally, such “lesser misconduct” includes those actions which wouldnot restrict the respondent's license to practice law and probably notresult in any public discipline by the Court, yet reflect adversely upon thelegal profession, potentially harm the administration of justice orendanger legal services provided to the public.

Prevention, not punishment, was the primary consideration espousedby the task force which recommended the program, which focuses on“minor” complaints that stem from disorganization, procrastination,poor office management or other personal challenges to the practitioner.

Respondent-attorneys selected to participate in the DiversionProgram rather than face discipline are required to enter into contractsspecifically providing that the disciplinary matter concerned shall be heldin abeyance pending successful completion of the contract terms. Thecontracts are tailored to provide specific educational or behavioralprograms designed to assist the respondent-attorney’s practice, officeprocedures or personal issues affecting their respective practice. Thesemandatory programs are presented by OBA staff.

The curriculum include half-day courses in trust accountmanagement, improving client communication and avoiding clientneglect, as well as full day courses in ethics or law office management.More specific programs tailored to specific practitioner problems caninclude an on- site review of office procedures to provide evaluation andspecific recommendations designed to improve law practice operations,mentoring, psychological or medical monitoring and Lawyers HelpingLawyers, which assists selected respondent-attorneys with, depression,substance abuse or work-life balance issues. Burt tries to ask questionswhich other Commission members might not ask while using hisexperience to positively shape and influence Commission policy.

Are there things attorneys can do to avoid coming before theProfessional Responsibility Commission? While serving on theCommission and in other settings, Burt has observed that all toofrequently, lawyers incorrectly assume they know everything about theclient’s issue without asking enough questions. Sometimes the lawyerconcerned simply doesn’t care; more frequently the client has littleeducation, little experience with the issue concerned or limitedcommunication skills. Burt has a simple formula for that: ask enoughquestions to identify all dimensions of the problem the client wants solved.

And in that there is wisdom for us all.

Boss Holmes and the Sage of Sunset TerraceBy Laurence J. Yadon

Although this series usually profiles Tulsa attorneys, an exception has been made for insurance and convenience storemogul Burt B. Holmes and former Tulsa Historical Society executive director Clayton Vaughn, a retired broadcast journalistwho has reported high profile national stories in Los Angeles, New York and elsewhere. Civilians they may be, but each ofthem has unique experience in the legal system.

5April 2015

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Charitable Trust Information

6 April 2015

The Elected: Profiles of Elected Courthouse Servants Part V - Bill LaFortune, Tulsa Co. District Judge, Office 7By Michael P. Taubman

On a Friday afternoon in February,unburdened by winter’s salt, sand andschool closings, Judge William LaFortunesat down for this interview in his office.Two months into his new role as a DistrictCourt Judge for Tulsa and PawneeCounties, LaFortune won election as soonas the filing period closed in April 2014,being unopposed for the seat vacated bythe retiring Judge, Tom Gillert. Having met

LaFortune only in passing or seeing him at the gym, he intrigued meprofessionally, serving as a private practice lawyer, A.D.A., A.A.G.,Special Judge, D.A., Mayor, Administrative Law Judge and now DistrictJudge, while being a husband and father along the way.

Having been District Attorney, the Mayor, now a DistrictCourt Judge, it begs the question how did you get here?

His nomadic path to this present tenure on the bench began aftergraduating Cascia Hall in 1975. LaFortune entered a golden domeduniversity called Notre Dame, but this point of entry would not be hispoint of egress. As the golden sunsets of the left coast beckoned, hetransferred to U.C. Santa Barbara, receiving his B.A. in 1980. He laterreceived his J.D. in 1983 from the University of Tulsa, beginning his lawcareer.

During his third year of law school, law student Bill LaFortuneinterned for the Tulsa County D.A.’s office, then held by David L. Moss.LaFortune’s first job after law school graduation was in the Tulsa officeof Telex Corporation, working in contracts administration and gainingexposure to M&A work during their merger with Raytheon DataSystems. He briefly returned to work as an A.D.A. under Moss in 1985,until accepting a position with the Oklahoma Attorney General's officein 1987 under then-A.G. Robert Henry.

“I commuted back and forth from Tulsa to [OKC], while my wife[Dr. Kathy LaFortune] was back here raising two kids, born 13 monthsapart” said LaFortune, adding that they now have three adult children.Confessing that he missed his family greatly during this time, he creditedthem for his success in his job at the A.G.’s office, where he was assignedto Oklahoma’s first multi-county grand jury. “Kathy was working as apermanent, part-time public defender here, on top of being a greatmother. I also had a very supportive mother-in-law.” The commute woreon several years, until 1988 when Tulsa's D.A., David Moss, brought himback to serve our community.

Returning to the Tulsa County D.A.’s office, he first worked injuvenile, gaining more experience in jury trials before moving to thefelony team. Former Judge Tom Gillert was an A.D.A. at that time,mentoring him in child abuse prosecutions with Judge Youll who was

also an A.D.A. under Moss. In 1990, A.G. Robert Henry called to ask ifhe would be interested in heading up a new A.G.’s office in Tulsa. “Heknew I liked the work, but not all of the travel [to and from OKC],” soLaFortune became director of the A.G.’s Tulsa Bureau.

Judge Bill Pigman's death opened a new door to LaFortune in 1993,accepting appointment as a Special Judge in Tulsa County. As a SpecialJudge, LaFortune’s dockets included criminal felony preliminaryhearings and arraignments, juvenile dockets, protective order andmental health dockets and domestic relations. Tragically in 1995, theuntimely death of his former boss, mentor and colleague, D.A. DavidMoss, likewise opened another door, as LaFortune was appointed bythen Gov. Frank Keating as D.A. to fill Moss’ tenure.

As Tulsa’s D.A., he saw the retrying of Judge Hopper's erroneouspresumed not guilty jury instruction. “In any given year, the D.A.'s officehas thousands of cases filed, now we had to look over dozens of thesecases. We brought in some special D.A.s to handle the [presumed notguilty] cases.” LaFortune looked to former D.A. Buddy Fallis and others.Also during his tenure as D.A., LaFortune prosecuted the last dual jurytrial in Tulsa County.

The brutal murder in February 1995 of a QuikTrip store clerk,Richard Yost, involved four defendants, one of whom was a co-workerof Yost’s. “At trial, we would present our case on two of the defendantsto a jury seated in [Judge] Ned Turnbull’s courtroom; then, he'd excusethat jury, another jury was brought in, and we’d present the evidenceagainst the other two defendants.” LaFortune stated his belief that themost compelling evidence was “a security tape from store, and youcould see them force [Yost] into the [walk-in] cooler, and hear theaudio as these [defendants] brutalized this poor guy with a metal bat.”“We received the most number of death penalty convictions in one case,three of them, and the other defendant got life without parole.”

In June 1998, LaFortune resigned his D.A.’s post to pursue a newopportunity as a private practice attorney with Norman, Wohlgemuth,Chandler and Dowdell. “It was a real unique position, because I had theopportunity to work with Charlie Norman. He was a great mentor tome.” Learning at the hand of a master of zoning and civil litigation,LaFortune kept growing his practice expertise. “Just as I felt that I reallywas hitting my stride, [then Mayor Susan] Savage announced she wasn’trunning for mayor again” recalled LaFortune. “When I walked intoCharlie's office, he could tell that I was thinking about [the Mayor'srace].”

Now Mayor LaFortune took office in 2002, and “my first day inoffice, I was sworn in, and they handed me the settlement for the black[police] officers lawsuit, telling me that I had one week to approve it.”He shakes his head toward the ceiling with a sound of exasperation.After getting input from Chief Palmer and the others involved, MayorLaFortune did not approve it. “We did settle it, and I believe it was on

7April 2015

better terms for the city.” LaFortune's most tangible success as Mayorwas Vision 2025, which the iconic BOK Center is nearly visible from hisnew office window.

Losing to Kathy Taylor in the 2005 Mayor's race, LaFortune returnedto private practice. First, he practiced with Moyers, Martin, Santee &Imel, but he would go on to form a new practice, sharing an office withanother former A.D.A. and longtime family friend, Brett Swab. Heworked on contract as an Administrative Law Judge with the OklahomaDepartment of Labor while managing his own practice, until learningthat Judge Gillert planned to retire, which opened the door forLaFortune to his current office. “We’re only about two months into thisdocket, but it really helps to have [Judge] Tom Gillert’s court reporter,bailiff and clerk stay on to work with me” stated LaFortune.

What qualities do you believe contributed most to yoursuccess in this race?

Admittedly, this seems like a silly question to ask someone whovirtually won the race on the close of the filing period, but, other thanbeing unopposed, LaFortune credited his campaign team, includingRobert Sartin and Chris Davis among others. He continued, "we had asmall group who really helped the team. [Sartin] came at it with this'shock and awe' approach of jumping out there, forming the committeeearly, fundraising quickly, and we hit the trail hard from January thru theclose of filing.” It obviously worked because, when the dust settled, noone filed to challenge LaFortune for the race.

Who or what has inspired you most in your professionallife?

“When I went to college, I dreamed of being a teacher and coach,and I had a great love of the outdoors too.” He took classes inenvironmental studies at UCSB, thinking he might like to go into a careerin the forest service. There were no lawyers in his family tree. “I tookthree classes [at UCSB] in environmental law from some greatprofessors and lawyers, and it retrained my focus on the law.”

You’ve practiced in many areas of law over your career. Is there onearea of the practice of law that you find most interesting?

He fondly recalls working with his mentor, Charlie Norman, onzoning and planning issues as a favorite area of his private practice days.“As a Judge, I’m comfortable practicing in the area of criminal lawbecause I’ve worked in and around it since I was a third year lawstudent.” Looking back on his career, LaFortune explained that “beinga Judge is a favorite of mine because I genuinely like people and helpingpeople.”

The Tulsa World ran an editorial Jan. 24, 2015 by JimSturdivant about the process of judicial election versusjudicial appointment, and the [OU Law Dean Earl] SneedPlan that established the judicial nominating commission.What is your opinion of the electoral process for our districtcourt judiciary?

“I support the current scope of Judicial Nominating Commissionselection process," stated LaFortune, “but it’s hard to deny that politics

plays a part.” “I'm not ready to say that we should discontinue standingfor election every four years, with one caveat. [Elections] should remainnon-partisan, or it will become overly politicized.” He stated.

Everyone needs some down time, so how do you like to relaxwhen you’re not working?

LaFortune's main outside interest is focusing on his family andexercise, such as working out or playing basketball with friends. Hegenuinely wears a proud father’s smile, talking about getting to go watchhis son play football at T.U., and his daughter who played basketball atHoly Cross.

I wouldn't be much of a journalist if I didn't ask about themissing tapes?

A one-time only Grateful Dead show took place in Tulsa during alousy, winter storm (hmm, seems about right given recent weatherpatterns) on February 6, 1979. Those in attendance reported that theFairgrounds Pavilion was about 2/3rds empty. Even archivist, DaveLemieux, cannot find a tape of the show among the recording vaults.

Years ago, I’d heard a rumor that LaFortune had a tape of that show,so now was my opportunity to ask Judge LaFortune, where is the missingbootleg? After we stopped laughing at the question, he confessed “I’mnot sure where it is or if I have it.” He went on to describe he and hisfriends’ working to set up the show, and their hodgepodge attempt torecord it using mics taped to the sides of the seats, which left a reallymuffled, dull recording. He recalled that “David Schwartz helped bringthem. There was a union issue with setting up, so we, as college kids,helped set up the show with [the famed Lawrence ‘Ramrod’ Shurtliff]and their crew. It was so cold in [the Pavilion] that Jerry wore a plaidflannel over his t-shirt during the whole show.”

Alas, the tape remains lost to history for now, and I know howGeraldo must have felt after opening Al Capone's safe, except for the partabout the embarrassment of being on prime time television. However,Judge LaFortune and I continued talking about his other greatexperiences with meeting famous musicians, such as James Taylor,Taylor Hansen, and as Mayor his special proclamation on May 8, 2003as Bob Weir & Ratdog played Tulsa. Judge LaFortune represents adedicated professional with a broad knowledge and range of lifeexperiences, benefiting all citizens of Tulsa who appear before him.

8 April 2015

LAST MEETING: M. Shane Henry and Aaron D. Bundy, of Fry &Elder gave an entertaining and captivating presentation entitled“Starting your Trial Off Right: Opening Statements and TrialTactics.” The multi-media presentation focused on bothstrategies and practical methods to prepare for trials and motionhearings. The “nuts & bolts” suggestions they gave provided ahost of great ideas for how to get started and develop persuasiveand effective presentations. Due to time limitations the programwas cut short and if continued interest is shown, they have offeredto return to complete the program. Audience participation washigh and several in the trenches learning experiences werediscussed.

NEXT MEETING: On April 21, 2015 at noon at the TCBAoffices, John Tucker and John Woodard will participate in apanel discussion regarding Closing Statements. These two lionsof the bar have a depth of experience between them that is rarelymatched. This is a chance to ask two long time litigators abouthow they approach tying the bow on the case or argument. If you

have questions that you think of beforehand and would like themto address, please send them to me at rredemann@pmrlaw.net.

BUT WAIT, THERE’S MORE…

Our meeting on May 19, 2015, will feature Joe Paulk, one ofOklahoma’s most experienced mediators. He will present onfocus groups and mock trials. It’s bound to be an enlighteninghour. Don’t forget, the meetings include lunch.

LAST–A NEW LITIGATION SECTION MEMBER BENEFIT:Any TCBA Litigation Section member who registers for a BrownBag seminar will get an extra $5.00 off the already lowregistration fee. Please identify yourself as a Litigation Sectionmember when registering. A modest foray into additionalbenefits but we hope you will take advantage of it.Keep on trying.

Bob Redemann

Tulsa County Bar Association

LITIGATION SECTION NEWS

9April 2015

10 April 2015

VP’s CORNERMatt Farris, TCBA Vice President

IT’S TIME TO THINK ABOUT INCOME TAXES

Matt Farris, TCBAVP’s CORNER

O TTIME IT’S

ice V Vice PresidentMatt Farris, TCBAVP’s CORNER

ABOUTTHINK O

ice PresidentVP’s CORNER

ATTAXES INCOME ABOUT AXES

As the 2015 tax filing deadline nears, clientswith pending probate cases and trustadministration matters, as well as estateplanning clients, may need to be remindedthey should consider planning for applicableincome tax issues in addition to the morehistorically common planning concernsrelated to potential estate and gift tax liability.Indeed, for many trust and estate clients,income tax planning has become more thanimportant (and more relevant) thanplanning for the imposition of estate taxliabilities by the state and federalgovernment.

In Oklahoma, there is no longer a state estatetax burden for decedents’ estates who passedafter January 1, 2010. Moreover, Oklahomadoes not impose a gift tax upon its residents.With respect to federal estate taxes, theAmerican Taxpayer Relief Act of 2012(ATRA)2 set the federal estate, gift tax andgeneration-skipping transfer applicableexclusion amount at $5,000,000.00, indexedannually for inflation.3 Accordingly, in 2015,the federal estate tax exemption for anindividual is $5.43 Million Dollars, whichallows an individual taxpayer to transfer$5.43 Million Dollars at death withoutincurring any federal estate tax liability.

When combined with the portabilityprovision as defined under ATRA §101(c)(2) and “permanently” authorized byI.R.C. § 2010(c)(2) and the accompanyingTreasury regulations, a surviving spouse maytransfer his or her deceased spousal unusedexclusion amount (“DSUE” – up to $5.43Million Dollars in 2015) effectively providinga married couple with the ability to transfer

up to $10.86 Million Dollars [in 2015] aftertheir deaths without paying any federalestate tax.4 Consequently, most decedents’estates in Oklahoma – whether the decedentwas married or not – will not be subject tofederal estate tax liability just as they are notsubject to state estate tax liability.

Income taxes, on the other hand, affect allclients and their estates. ATRA set the topindividual income tax rate at 39.6% (up from35%) and increased the top capital gainsrate to 20% (up from 15%) for taxpayerswith taxable income over $450,000 (jointfilers), $400,000.00 (single filers),$425,000.00 (heads of household), and$225,000.00 (married filing separately).5

By comparison, the top income tax ratefor trusts and estates (39.6% in 2015)is imposed when assets exceed only$12,301.00! Thus, it is critically importantto address income tax issues with trust andestate clients in order to attempt to reduceincome tax liability, before and after death.

For example, during probate and throughouttrust administration matters, fiduciariesshould be aware that income attributed to atrust or estate in excess of $12,301.00 duringthe year will be taxed at the highest possiblerate (39.6%) if the income is not timelydistributed. As such, personal repre-sentatives in probate cases who receiveand/or obtain income for an estate from anysource (such as interest, dividends, saleproceeds and/or royalty payments, etc.)should consider filing an application with theCourt for an interim order of distribution toeffectuate a disbursement of some or all ofthe income to the estate heirs or devisees. If

an interim distribution order is issued, thenthe heirs or devisees will pay income tax onthe distributions at their likely lower,personal income tax rates rather than themaximum estate income tax rate imposedupon trusts and estates. In lengthy probates,multiple interim orders of distribution maybe appropriate in order to reduce incometax liabilities.

Similarly, trustees should remain vigilant withrespect to the trust document’s termsaddressing trust income and ensure it istimely distributed to the beneficiaries inorder to avoid the trust paying income tax atthe 39.6% maximum rate. Unhappybeneficiaries will look to the fiduciary forredress if the trust estate unnecessarily paysincome tax at the highest possible rate, thusreducing distributions, when action couldand should have been taken to distributetrust income thereby reducing the trust’sincome tax liability.

Moreover, Oklahoma does not impose a gift tax upon its r

1

1 See 58 O.S.2010, § 635.2 See ATRA, P.L. 112-240 (January 2, 2013).3 See I.R.C. § 2010(c)(3)(B).4 However, “portability” is not available for the generation-skipping transfer exemption.5 In addition to the tax increased included within ATRA, the Affordable Health Care and Patient Protection Act imposed a 3.8% tax on netinvestment income on single tax payers with modified adjusted gross incomes in excess of $200,000.00 and upon married filers with modifiedadjusted gross incomes in excess of $250,000.00. This 3.8% tax also applies to trusts with gross incomes in excess of $12,150.00.

11April 2015

With respect to estate planning, basic estateplanning has no impact on income taxesinasmuch as the execution of a will (onlytakes effect after death) or a revocable livingtrust (disregarded by the IRS for income taxpurposes) does not impact a client’s incometaxes. However, income tax reduction andavoidance is now of particularly interest toclients given their ability to potentiallytransfer over 10 Million Dollars of wealthwithout incurring federal estate tax liability,as discussed above. Moreover, as the Baby Boomer generation enters retirement, manyclients will be seeking advice on how toreduce their income tax exposure (as well astheir estate’s income tax exposure) after alifetime of accumulating assets to supportthemselves in retirement. Below is a briefsummary of several strategies clients mayconsider utilizing to reduce income taxesafter consulting with a qualified estateplanning attorney.

• Transfers into Trust – while a standardrevocable living trust provides no incometax benefit to a grantor, certain types oftrusts may be drafted to decrease incometax liability. For example, a trustor maytransfer income producing assets into“spray” trusts that shift and distributetaxable income to beneficiaries in lowertax brackets. When this shift occurs, thetrust is able to take a tax deduction on thedistribution.

• Home Sale Exclusion – clients may be ableto take advantage of the limited exclusionof income gained from the sale of a

primary residence. This limited exclusionallows a taxpayer to exclude from incomeup to $250,000.00 of gain for individuals(up to $500,000.00 for married couples)so longs as the property sold has been theprimary residence for at least 2 of the 5years preceding the sale date.

• Tax Basis Planning – as noted above,income tax planning has become moreimportant than ever after ATRA. Ratherthan focusing solely on removing assetsfrom a client’s gross estate for the purposeof reducing estate tax liability, attorneysand their clients should now discuss andconsider certain assets and theirrespective tax bases that a client may wantto retain in his or her gross estate in orderfor those selected assets to receive a step-up in basis at the client’s death, which willreduce estate beneficiaries’ tax liability onsubsequent sales. For many clients, ananalysis of such income tax issues at theirdeath will trump estate tax concerns.

• Tax Free Gifts During Life – clients mayreduce the size of their estates by takingadvantage of the annual federal gift taxexemption permitting each taxpayer togive up to $14,000.00 (in 2015) to asmany recipients as the taxpayer wisheseach year. Thus, married couples maygive up to $28,000.00 each year to anyoneand as many people as they wish withouttax consequences. As a result, appropriateclients may be also able to reduce theirgross income in order to decrease theIRS’s income-based phase outs of certain

personal exemptions and itemizeddeductions.

• Charitable Giving – there is no limit oncharitable giving. Thus, a taxpayer mayreduce the size of his or her estate and therelated income tax burden by giving tocharity. Similarly, there is also no limit ongifts of tuition or medical expenses if thetaxpayer gives directly to the institutionalprovider. Moreover, taxpayers concernedabout offsetting income tax liability mayconsider setting up a CharitableRemainder Trust (“CRT”), a CharitableLead Trust (“CLT”), a Donor Advised Fund(“DAF”) or even a Private Foundation ifthe charitable donation is large enough.

The above strategies are but a few estateplanning options available to taxpayers moreconcerned with income tax liability thanestate tax liability and are included toencourage a dialogue between attorneys andtheir clients regarding income tax planning.

With regard to income tax issues impactingall trust and estate clients, includingfiduciaries, the federal estate, gift tax andgeneration-skipping transfer applicableexclusion amount made “permanent” byATRA will continue to grow over and aboveits current level of $5.43 Million Dollars as itis adjusted for inflation. It follows that suchclients will surely seek an increased amountof understanding and counsel specific toincome tax planning from their attorneys.

Professionalism Top Ten Tips - #4 Be Respectful By Fred SlickerThe April, 2010 Your ABA Newsletter announced a new ABA book entitled “The Busy Lawyer’s Guide to Success” by Reid F. Trautz and Dan Pinnington. The book lists 10 things that lawyers do which most annoy their clients. See previous issues for more and look for the next tip each month.

• Treat others with respect. • Do to others what you expect them to do to you. • Do not do to others what you do not want done to you.• You get back what you dish out.• Do not retaliate with disrespectful comments or conduct.• Be on time.• Do not contest what is not in dispute.• Compromise nominal issues to obtain substantive solutions.

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12 April 2015

13April 2015

14 April 2015

15April 2015

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20 April 2015

Everyone knows that when meeting a potential client, making agood first impression is important. What you may not consider is thatwhen a client visits your office, the first impression begins before theyeven meet you; it begins when they walk through your door. Barrow &Grimm, PC knows the importance of this impression and that is whyBill Grimm and Allen Barrow recently commissioned nationally knownartist Grace Grothaus to create a custom painting for their entryway.Visitors to their office are greeted to a visual display as soon as they stepoff the elevator, even before they enter the double glass doors to thereception area. Since Tulsa is the home to Barrow & Grimm’s law practice and a

majority of their clients, they commissioned a three panel colorfulpanorama of local points of interest. Center stage is a beautiful skylineof the city with a free flowing Arkansas River. Flanking each side of theskyline are two separate panels showing the grassy rolling hills of theTallgrass Prairie with roaming buffalo and an oil pump-jack. Thepaintings signal eye-catching, richly-painted hues of local featuresimportant to the roots of Barrow & Grimm and their clients. Grothaus’work is uniquely perfect for an office because it is back lit from withinby LEDs and provides ambient lighting as well as captivating three-dimensional visuals. Grace Grothaus didn’t always create back lit paintings. While earning

a double major Bachelor of Fine Arts at the Kansas City Art Institute anda year in the Master’s program at the University of Oklahoma, sheenjoyed creating sculptures but missed painting. Longing to combineher interests, she slowly developed this one-of-a-kind artistic process.Honing her craft for more than the last ten years, she has shown near

and far. Her work has been featured on the front page of yahoo.com in2007, and in 2012 at the 2nd World Creativity Bienal in Rio de Janerio,Brazil, as one of two artists representing the United States. In 2013 she was selected as Oklahoma City’s Artist of the Year, amongher other honors. Local corporate collections include Cimarex Energy,Oklahoma State University, Saint Francis Hospital and RotoHammerInc. While she and her work may sometimes travel great distances, sheis proud to call Tulsa home, saying “the sense of community here is likenone other.” Grace’s work may be found locally at the M.A. Doran Gallery on

Brookside, her mid-town studio and online at www.gracegrothaus.com

First Impressions: The Artwork of Grace Grothaus

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28 April 2015

The public’s perception of the legal profession is very negative.This perception is, I believe, unfair, inaccurate and untrue. There aremany reasons for the negative perception, some of which include thefollowing:

Lawyers charge too much and care too little. Lawyers profess honesty but act without morality or ethics.Lawyers are dishonest and spin the truth for their client’s benefit.Lawyers are schemers and tricksters.Lawyers are sneaky and smart but sharp in a negative way.Lawyers will take either side, without regard to the truth.Lawyers are disrespectful, deceptive, rude and arrogant. Lawyers are rich. Lawyers prey off of the misfortune of others.Lawyers are hypocritical. Lawyers do not explain how fees are charged.Lawyers do not explain what expenses are reimbursable.Lawyers do not explain the adjudication process.Lawyers use legalese without explanation. Lawyers do not keep clients adequately and timely informed. Lawyers often ignore and disrespect the client.

The public’s perception is formed by the media, which portrayslawyers badly. The public does not understand the adversarial systemwhich pits lawyers against lawyers. The public does not understandthe exclusionary rule, which excludes truthful evidence from juryconsideration. The public does not know what lawyers really do. Thelegal process is long, tedious, uncertain and expensive. The client’sexpectations are often unrealistic. Clients have little contact withlawyers except in crisis. Lawyer jokes demean the profession. Thepublic has no insurance to pay lawyers. There is some truth in some of these perceptions, but the public’sperception of the legal profession as a whole is mostly misguided.Individual lawyers and the legal profession as a whole have not donea persuasive and effective job of informing the public about the goodthat lawyers do.

The truth is that the legal profession is a learned and honorableprofession. Most lawyers are honest, competent, hardworking, caring,compassionate, respectful, effective counselors and public citizens.Most lawyers devote at least some of their time, attention andexperience free for charitable, religious or community serviceprojects. Many lawyers are not paid by their own clients for the goodwork they do, even when the client does not dispute the invoice.The truth is that lawyers do an enormous amount of good, both fortheir clients and for the public. Lawyers play a fundamental and anessential role in maintaining public order and in preserving and

protecting the Rule of Law. Some but certainly not all of the activitiesundertaken by lawyers include the following:

Lawyers stand for election to public office, often at great personalsacrifice.Lawyers write the laws, rules, regulations, codes and standards of

conduct to establish and keep the public order.Lawyers represent the government to insure public safety, order and

compliance with law. Lawyers represent private clients against government over-reaching.Lawyers represent private clients against criminal charges.Lawyers represent individuals and organizations in resolving

disputes without violence, most often without litigation.Lawyers give legal advice to the poor, often free and often at great

personal inconvenience.Lawyers mediate peaceful resolution of disputes between adverse

parties. Lawyers volunteer to act as leaders and board members for public

agencies, such as school boards, airport authorities, water districtsand similar entities, often without compensation.Lawyers volunteer as leaders and board members for various

charitable entities and not-for-profit causes, often withoutcompensation.Lawyers volunteer as leaders for churches, parishes, synagogues

and other religious bodies, serving without compensation.Lawyers volunteer as teachers, mentors and counselors for

educational entities, often without compensation. Lawyers volunteer as mentors, coaches and leaders to train the

youth, usually without compensation. Lawyers often give free advice in Ask-A-Lawyer and similar

informational programs.Lawyers give enormous amounts of money, time and effort for

public, political, civic and charitable purposes.Lawyers volunteer as speakers at schools and other civic

organizations.Lawyers give money, time and effort to community food banks, day

care centers for the homeless, veterans’ organizations and similar not-for-profits.Lawyers provide lawyer referral services to the public at nominal or

no cost. Lawyers have a great story to tell about all the good that individual

lawyers do and about what the profession as a whole does to keep oursociety free and orderly and to advance the principles of equal justicefor all. While lawyers are generally excellent at persuasion, the legalprofession has not been effective at persuading the public about thegood the profession does. We need to do better for the good of theprofession and for the good of the Rule of Law.

29April 2015

The law firm of Richards & Connor ispleased to announce that Lawrence R.Murphy, Jr., has become a partner with thefirm. Mr. Murphy is national coverage counselfor State Auto Insurance Companies. Heattended the University of Tulsa College of Lawand, in addition to his coverage practice, hemaintains a general litigation practice. He hasbeen involved in the successful resolution of

major class action and bad faith cases and is currently involved inmatters throughout the United States in both federal and state courts.Mr. Murphy has also defended white-collar criminal investigations,has handled domestic litigation matters, and routinely represents localbusinesses in complex business litigation disputes.

_________ Q __________

Timothy L. Rogers has been elected apreferred shareholder at Barrow & Grimm,P.C. in Tulsa, where he focuses on businesslitigation, construction litigation, employmentand surety law. He graduated from theUniversity of Tulsa College of Law in 2008.

_________ Q __________

Eller & Detrich, P.C. announces thatHeidi L. Shadid has joined the firm as anassociate attorney. Ms. Shadid earned herB.A. Degree, magna cum laude, in 2004 fromthe University of Tulsa. She received her J.D.from the University of Kansas School of Law in2008 and was admitted to the Kansas andMissouri Bars in 2009 and the Oklahoma Barin 2010. Ms. Shadid’s practice emphasis will

be in litigation, commercial transactions and real estate.

Casey Cooper joins GableGotwals as anew Shareholder in the Tulsa office. Cooper’sprimary focus will be complex litigation,corporate services, environmental services, oiland gas matters and the law of highereducation. Cooper is a former attorney in theU.S. Navy’s Judge Advocate General’s Corps.Cooper received his J.D. from University ofTulsa School of Law. He also earned a Bachelor

of Science in Business Administration, from the University of Tulsa.

Stacy M. Brklacich joins GableGotwalsas an Of Counsel Attorney in the Tulsa officewhere she will focus on healthcare law. Aformer Tulsa County Assistant DistrictAttorney, Brklacich earned her Juris Doctorfrom the University of Tulsa College of Law in2008. She earned her Bachelor of Science in2000 from the University of Central Arkansas.

_________ Q __________

Sam P. Daniel celebrates 50 years with Doerner, Saunders,Daniel & Anderson on April 1. Sam hasbecome an Oklahoma legend in family law,including divorce, custody, guardianship, andproperty division issues. He has been aleading commercial litigator and bankinglawyer as well. A named partner since his firstday at the firm in 1965, Sam has dedicatedhis professional life to serving clients and hasbeen a constant example of determination

and integrity to all those who have worked with him.Sam decided in the second grade that he wanted to be an attorney,

after becoming friends with former Federal Judge A.P. Murrah’s son.He says from that early time he never thought about doing anythingelse. When reflecting on his career, Sam counts himself fortunate,stating, “I do what I love to do with the people I love to do it with. Ilike the give and take of solving people’s problems and I have found itsatisfying even though it can be a battle.”Congratulations to Sam from all his friends and colleagues!

_________ Q __________

Doerner, Saunders, Daniel & Anderson is pleased to announcethat former Judge William C. Kellough has joined its Tulsa office.Kellough served as a district judge in Oklahoma’s 14th Judicial Districtin Tulsa County for eight years. He has many general practicecapabilities but will concentrate on dispute resolution, litigation andhealthcare. “We are proud of the addition of former Judge Kellough toour roster of fine attorneys. He will provide Doerner Saunders with aneven greater depth of knowledge and skill in both transactional andlitigation arenas,” said David Herrold, the firm’s Managing Partner.

Grapevine

30 April 2015

The board of directors of McAfee & Taft, Oklahoma’s largest lawfirm, has named lawyers Mary Quinn Cooper and CharlesGreenough from its Tulsa office and Barrett Ellis and Erin Van Laanenfrom its Oklahoma City office to serve as new practice leaders for the2015 term.

Trial lawyer Mary Quinn Cooper wasappointed to co-lead the state’s largestlitigation practice with returning co-leaderBrad Donnell. Cooper serves as trial counselfor a number of Fortune 500 corporations,including Ford Motor Company and GeneralMotors, and defends product liability claimsand class actions across the country. Herpractice includes defending clients inprofessional malpractice cases.

Barrett Ellis was named leader of thefirm’s Banking and Financial InstitutionsGroup. Ellis advises corporate and financialinstitution clients in a wide range oftransactional matters, with a particularemphasis on finance transactions andregulatory compliance. He is particularlyregarded for his experience in representingbanks and borrowers in structuring financingarrangements around complex corporatestructures or regulatory requirements.

Charles Greenough was appointed leaderof the firm’s Business Restructuring, Workoutsand Bankruptcy Group and has extensiveexperience in financial, debtor/creditor, andbankruptcy matters, representing both lendersand borrowers, as well as serving as a trusteeand as a liquidating agent in complexbankruptcy estates. He has represented banksand other financial institutions in all aspects of

loan documentation, workouts and related litigation, includingcounterclaims brought by borrowers in problem loans. He also serves asa Chapter 7 trustee for the Northern and Eastern Districts of Oklahoma.

As the new leader of the firm’s AviationGroup, Erin Van Laanen oversees one of thelargest and most experienced FAA aircraft titleand financing legal teams in the United States.Her practice is concentrated in the areas ofaircraft title, registration, financing and leasingand related matters concerning the United StatesFederal Aviation Act, the FAA Aircraft Registry inOklahoma City, and the Cape Town Convention

on International Interests in Mobile Equipment and the Aircraft Protocol.McAfee & Taft is one of the nation’s 250 largest law firms as ranked

by the National Law Journal and serves clients locally, nationally andinternationally in the areas of aviation, banking, business restructuringand bankruptcy, business transactions and finance, employee benefits,energy and oil & gas, environmental law, healthcare, intellectual property,labor and employment, litigation, real estate and tax and family wealth.The firm employs nearly 350 Oklahomans, including 180 attorneys, andhas offices in both Oklahoma City and Tulsa.

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31April 2015

TCBA BROWN BAG CLE LECTURE SERIES:

April 30th – Judge Millie Otey will be reviewing the updated Misdemeanor Docket Forms

May 28th – Justice John F. Reif will provide

perspective on the Separation of Powers

Tulsa County Courthouse Room #6051.0 Hour CLE Credit

TCBA Members $30 / Non-Members $45 / Audit $5*Judges who are TCBA Members are welcome to attend free of charge

Registration due by Noon the day before each seminarLate/Walk-in registration subject to late fee

Registration Required: Visit www.tulsabar.com to register

A BROCBT

WN BA BRO

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perspective on the Separation of Powers. Reif will provide – Justice John F

the updated Misdemeanor Docket Forms – Judge Millie Otey will be reviewing

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the updated Misdemeanor Docket Forms – Judge Millie Otey will be reviewing

G CLE LECTURE SERIES:

G CLE LECTURE SERIES:

*Judges who are

alk in Late/WWalk-in registration subject to late feeRegistration due by Noon the day before each seminar

M TCBAA Members are welcome to attend free of char*Judges who are Members TCBAA Members $30 / Non-Members $45 /

1.0 Hour CLE Creditulsa County Courthouse Room #605T

alk-in registration subject to late feeRegistration due by Noon the day before each seminar

Members are welcome to attend free of char Members $30 / Non-Members $45 /

1.0 Hour CLE Creditulsa County Courthouse Room #605

alk-in registration subject to late feeRegistration due by Noon the day before each seminar

ge Members are welcome to attend free of charAudit $5 Members $30 / Non-Members $45 /

1.0 Hour CLE Creditulsa County Courthouse Room #605

ge

Registration Required:

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.com.tulsabar

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to register

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