Tulsa Lawyer April 2015

D. Kenyon (“Ken”) Williams, Jr.

A Message From the President months King John disregarded the Great Charter (or Magna Carta) and plunged England into the civil war that the barons (precursors to England’s representative house of Parliament) sought to avoid. But, as Hannan stated in INVENTING FREEDOM, “… just as that war seemed to be on the point of stalemate, the providentially bad monarch (King John) rendered one last service to England by dying opportunely in Newark Castle in October 1216 (almost certainly of dysentery, and sadly not, as one source claims, from a surfeit of peaches).”

THE RULER’S EXECUTIVE ORDERS WERE A PROBLEM … for the rebellious house of representatives.

Other concerns were the ruler’s elevation of foreign born individuals without regard to the impact on the resident population and the ruler’s insistence upon arbitrary taxes, as well as his confiscatory policies, not to mention the ruler’s conflict with the Jews.

Ultimately, the house of representatives passed a bill that the ruler could not veto and for a time it seemed that the conflict was resolved.

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

April 2015

For any of you who may be fact checkers, feel free to confirm that King John brought foreign nationals into his circle of advisors, which caused both resentment in the barons and high-lighted for the general population the national identity of Englanders. You will also find that King John imposed heavy tax burdens on England to finance his military efforts to reclaim lands lost in prior wars and that he also imposed confiscation of lands and holdings of widows for the same purpose. With regard to the Jews, there was a relatively small population of Jews in England at this time but they served as financiers, which gave rise to conflicts in which King John was involved.

So, what was the Great Charter about? From Prof. David Carpenter’s book MAGNA CARTA: “The Charter was above all about money. Its overwhelming aim was to restrict the king’s ability to take it from his subjects. Another major thrust was in the area of law and justice. The Charter wanted to make the king’s dispensation of justice fairer and more accessible, while at the same time preventing his arbitrary and lawless treatment of individuals.”

Even though most of us remember Sir William Blackstone for his treatise Commentaries on the Laws of England (1765 - 1769), he is also credited with establishing a numbering system for the provisions of the Magna Carta. Chapters 40 and 39 are the two chapters that, in my opinion, cause the Magna Carta to still be revered today.

Chapter 40 simply states: “To no one will we sell, to no one will we deny or delay, right or justice.” Chapter 39 states: “No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any way destroyed, nor will we go against him, nor will we send against him, save by the lawful judgement of his peers or by the law of the land.” In this context and the language of the time, “disseised” means dispossessed of property and “go against” means taking action against them by force of arms. “Law of the land” requires a bit more explanation.

According to Hannan, the Magna Carta’s reference to “the law of the land” recognized the concept of common law. “Being the law of the land, rather than of the King, AngloSaxon common law had four further properties that have served, to this day, to distinguish it from most civil law systems.

First, it laid particular emphasis on private ownership and free contract. … Second, common law is based on the notion that anything not expressly prohibited is legal. There is no need to get the permission of the authorities for a new initiative. Third, the invigilation [keeping watch over or enforcement] of the law of the land was everybody’s business. The policeman was and is a citizen in uniform, not an agent of the state. He has no more legal powers than anyone else, except to the extent that those continued on page 2

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President’s letter continued

powers have been temporarily and contingently bestowed on him by a magistrate. … Finally, and most importantly, the fact that the law was national rather than monarchical implied the need for an ultimate popular tribunal to determine it.” (Bold emphasis added) This last concept is based upon the principal that only a representative body, such as an elected Parliament, should be allowed to determine the common law of England.

Hannan quoted William Blackstone regarding common law: “Since the law is in England the supreme arbiter of every man’s life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administered therein. The common law depends not upon the arbitrary will of any judge; but is permanent, fixed, and unchangeable, unless by authority of parliament.”

So, how has the Magna Carta influenced the United States of America? William Penn, founder of Pennsylvania, wrote The Excellent Privilege of Liberty and Property: being the birth-right of the Free-Born Subjects of England, where he stated: “In other nations, the mere will of the Prince is 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. In England, each man has a fixed Fundamental

Right born with him, as to freedom of his person and property in his estate, which he cannot be deprived of, but either by his consent, or some crime, for which the law imposed such a penalty or forfeiture.”

The final declaration of the first Continental Congress in 1774 listed many of the same grievances addressed by Magna Carta, such as entitlement to life, liberty and property; freedom from arbitrary taxes; freedom from arrest and trial without due process, taking of property without due process, and most tellingly, entitlement to the common law of England and to the principles of the English constitution, i.e. the Magna Carta.

According to Justice William Brennan “The first eight amendments to our Federal Constitution, our explicit Bill of Rights, owes its parentage to Magna Carta; and Americans regard the enforcement of those amendments as the Supreme Court’s most important and demanding responsibility.”

(1985 Rededication Speech at the American Bar Association’s Memorial at Runnymede) Specifically, a portion of the Fifth Amendment to our Constitution (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, … nor shall be deprived of life, liberty, or property without

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

Even though King John repudiated the Magna Carta shortly after its creation in 1215, the Great Charter was revised and re-issued in 1217 and again in 1297. Even so, 1215 is remembered and celebrated as the birth of the Magna Carta, which brings us to the theme of our Law Day 2015, i.e. “MAGNA CARTA, Symbol of Freedom Under Law.” The American Bar Association has suggested, and our Association has concurred, that Law Day this year will be a celebration of the 800th anniversary of the Rule of Law. Our hard working Law Week Committee, passionately led by Chair (Judge) Daman Cantrell, has planned a great Law Week this year! Please help the Committee to make this Law Week one of the best ever by and through your personal involvement in the planned activities (see the LAW WEEK information pages in this issue of TULSA LAWYER) and through encouraging citizens with whom you have contact to be involved as well.

Thank you for your service!

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

April 2015

The Honorable William C. Kellough Recipient of the 2nd Quarter TCBA Golden Rule Award

By Larry D. Leonard A native of Tulsa, Bill has been a civic leader in the Tulsa community for over 30 years. He has served as a trustee or volunteer legal counsel on numerous boards and foundations. He is a former president of the Gilcrease Museum Association and the museum's Endowment Trust.

He was active in the Tulsa City County Library activities for many years and served as president of the Library Trust, chairman of the Peggy V. Helmerich Distinguished Author Award committee, and chairman of the Library Commission for the City of Tulsa and Tulsa County. Bill is also 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 Judge to fill out the term of Judge Tom Thornbrugh in 2011, he subsequently served a full two-year term in that position. During his tenure as presiding judge, the Court was awarded a $300,000 planning grant from the U.S. Justice Department for the creation of a Domestic Violence Court. He recently served on the Grant Planning Council.

Judge Kellough initiated the District Court Interpreter Certification program 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 the Tulsa County Community Sentencing Planning Council. He also served on the board of directors for the Oklahoma Trial Judges Association. In 2009, Judge Kellough was honored with the Earl Sneed award for Excellence 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.

The Tulsa County Bar Association is pleased to announce the Honorable William C. (“Bill”) Kellough has been awarded the Golden Rule Award for the second quarter of 2015.

Bill is a 1975 graduate of the University of Texas School of Law at Austin, and began his career in private practice in Tulsa, Oklahoma, with the old “Blackstock” law firm. After leaving the 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 in litigation, health care mergers, acquisitions and consolidations, as well as estate planning, probates and guardianships. Bill is a former president of the Oklahoma Health Lawyers Association and has served as 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 of Appeals. In 2003, he co-authored the book Building Tulsa: Lawyers at Work, a history of the Tulsa County Bar Association. He has been listed in Best Lawyers of America in three categories of expertise since 1995-Estate Planning, Healthcare Law and Civil Litigation. In 1991, he received a commendation from the Tulsa County Bar Association for implementing Legal Services for the Elderly, a lawyer volunteer program. He also served as an unpaid advocate in the Tulsa Lawyers for Children program.

News from the U.S. District Court for the Northern District of Oklahoma U.S. District Court Attorney Lounge: The Attorney Lounge is located just down the hall from the law library. Available exclusively to attorneys and legal assistants, this space was created so that attorneys will have a comfortable place to check email, have a snack or simply relax while waiting for court to resume.

The Attorney Lounge offers many complimentary amenities: • workstations with wired or wireless Internet access (guests must use their own laptop) • kitchenette with refrigerator, sink, and microwave • TV with cable access and comfortable lounging area

Now Open to the Public: The U.S. Courts Library: The newly renovated 10th Circuit Court of Appeals Library is located on the 4th floor of the Page Belcher Federal Building.

Why should a lawyer visit the library? The library offers many resources and benefits: • access to USCA, CFR, state statutes from all six Tenth Circuit states and 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 (password required) • 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 April 2015

Location and Hours of Operation: The Page Belcher Federal Building is 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 are open Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal Holidays.

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Boss Holmes and the Sage of Sunset Terrace

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

Part One: The Devil’s Advocate

While the public might perceive the purpose of the commission as ridding the profession of bad apples, Burt emphasized that this is not always the case.

Years ago, discipline cases considered meritorious were referred on to the Professional Tribunal for adjudication and all other cases were simply dropped. But now there is a middle ground. In 2003, the Court adopted a discipline diversion program for minor transgressions.

Generally, such “lesser misconduct” includes those actions which would not restrict the respondent's license to practice law and probably not result in any public discipline by the Court, yet reflect adversely upon the legal profession, potentially harm the administration of justice or endanger legal services provided to the public.

Prevention, not punishment, was the primary consideration espoused by 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 Diversion Program rather than face discipline are required to enter into contracts specifically providing that the disciplinary matter concerned shall be held in abeyance pending successful completion of the contract terms. The contracts are tailored to provide specific educational or behavioral programs designed to assist the respondent-attorney’s practice, office procedures or personal issues affecting their respective practice. These mandatory programs are presented by OBA staff.

The curriculum include half-day courses in trust account management, improving client communication and avoiding client neglect, as well as full day courses in ethics or law office management.

More specific programs tailored to specific practitioner problems can include an on- site review of office procedures to provide evaluation and specific recommendations designed to improve law practice operations, mentoring, psychological or medical monitoring and Lawyers Helping Lawyers, which assists selected respondent-attorneys with, depression, substance abuse or work-life balance issues. Burt tries to ask questions which other Commission members might not ask while using his experience to positively shape and influence Commission policy.

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

And in that there is wisdom for us all.

Between the two of them, Burt Holmes and Clayton Vaughn know everybody in town, and more about how things really work here than some would prefer. Four years ago, Burt publicly backed an entire slate of recommended replacements for the tiresome debating club then serving as the City Council. Within days, a shameless wag at the Café Cubana on Cherry Street began to wonder out loud whether Burt would become a modern day reincarnation of New York’s Boss Tweed or Kansas City’s Tom Pendergast, who Burt might have admired in his youth. That same Cubanan thought back with some bitterness to the day when, at age thirteen, he had personally delivered Burt’s evening newspaper on time through 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 from the University of Tulsa, Burt started the Holmes Organisation, which specializes in insurance, employee benefits and wealth management.

Seventeen years ago, Burt sold the business, but still consults there. He also co-founded and named the QuikTrip Corporation, where he sits on the board of directors. Burt has been, and in many instance remains actively involved in such organizations as the TU Board of Trustees; the Gilcrease Museum Association, the TU Alumni Association; Family and Children’s Services; Tulsa Philharmonic, Palmer Drug Abuse Program, Thornton Family YMCA, Greenwood Cultural Center and Phillips Theological Seminary. He also serves on the board of directors of First Oklahoma Bank, whose distinctive new headquarters is already a Jenks landmark.

Burt’s involvement in the group which established the Tulsa Botanic Garden is emblematic of his style. Someone else envisioned the garden in 2007, but from the very beginning, Burt has been engaged in staffing, financing and promoting the project, which will have a unique one-of-akind design.

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

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

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Charitable Trust Information

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April 2015

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

By Michael P. Taubman On a Friday afternoon in February, unburdened by winter’s salt, sand and school closings, Judge William LaFortune sat down for this interview in his office.

Two months into his new role as a District Court Judge for Tulsa and Pawnee Counties, LaFortune won election as soon as the filing period closed in April 2014, being unopposed for the seat vacated by the retiring Judge, Tom Gillert. Having met LaFortune only in passing or seeing him at the gym, he intrigued me professionally, serving as a private practice lawyer, A.D.A., A.A.G., Special Judge, D.A., Mayor, Administrative Law Judge and now District Judge, while being a husband and father along the way.

also an A.D.A. under Moss. In 1990, A.G. Robert Henry called to ask if he would be interested in heading up a new A.G.’s office in Tulsa. “He knew I liked the work, but not all of the travel [to and from OKC],” so LaFortune 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 Special Judge, LaFortune’s dockets included criminal felony preliminary hearings and arraignments, juvenile dockets, protective order and mental health dockets and domestic relations. Tragically in 1995, the untimely death of his former boss, mentor and colleague, D.A. David Moss, likewise opened another door, as LaFortune was appointed by then Gov. Frank Keating as D.A. to fill Moss’ tenure.

As Tulsa’s D.A., he saw the retrying of Judge Hopper's erroneous presumed not guilty jury instruction. “In any given year, the D.A.'s office has thousands of cases filed, now we had to look over dozens of these cases. We brought in some special D.A.s to handle the [presumed not guilty] cases.” LaFortune looked to former D.A. Buddy Fallis and others.

Also during his tenure as D.A., LaFortune prosecuted the last dual jury trial 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-worker of Yost’s. “At trial, we would present our case on two of the defendants to a jury seated in [Judge] Ned Turnbull’s courtroom; then, he'd excuse that jury, another jury was brought in, and we’d present the evidence against the other two defendants.” LaFortune stated his belief that the most compelling evidence was “a security tape from store, and you could see them force [Yost] into the [walk-in] cooler, and hear the audio 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 new opportunity as a private practice attorney with Norman, Wohlgemuth, Chandler and Dowdell. “It was a real unique position, because I had the opportunity to work with Charlie Norman. He was a great mentor to me.” Learning at the hand of a master of zoning and civil litigation, LaFortune kept growing his practice expertise. “Just as I felt that I really was hitting my stride, [then Mayor Susan] Savage announced she wasn’t running for mayor again” recalled LaFortune. “When I walked into Charlie's office, he could tell that I was thinking about [the Mayor's race].”

Now Mayor LaFortune took office in 2002, and “my first day in office, 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, Mayor LaFortune did not approve it. “We did settle it, and I believe it was on

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

His nomadic path to this present tenure on the bench began after graduating Cascia Hall in 1975. LaFortune entered a golden domed university called Notre Dame, but this point of entry would not be his point of egress. As the golden sunsets of the left coast beckoned, he transferred to U.C. Santa Barbara, receiving his B.A. in 1980. He later received his J.D. in 1983 from the University of Tulsa, beginning his law career.

During his third year of law school, law student Bill LaFortune interned 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 office of Telex Corporation, working in contracts administration and gaining exposure to M&A work during their merger with Raytheon Data Systems. He briefly returned to work as an A.D.A. under Moss in 1985, until accepting a position with the Oklahoma Attorney General's office in 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 months apart” said LaFortune, adding that they now have three adult children.

Confessing that he missed his family greatly during this time, he credited them for his success in his job at the A.G.’s office, where he was assigned to Oklahoma’s first multi-county grand jury. “Kathy was working as a permanent, part-time public defender here, on top of being a great mother. I also had a very supportive mother-in-law.” The commute wore on several years, until 1988 when Tulsa's D.A., David Moss, brought him back to serve our community.

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

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

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

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

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

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

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

A one-time only Grateful Dead show took place in Tulsa during a lousy, winter storm (hmm, seems about right given recent weather patterns) on February 6, 1979. Those in attendance reported that the Fairgrounds Pavilion was about 2/3rds empty. Even archivist, Dave Lemieux, 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 missing bootleg? After we stopped laughing at the question, he confessed “I’m not sure where it is or if I have it.” He went on to describe he and his friends’ working to set up the show, and their hodgepodge attempt to record it using mics taped to the sides of the seats, which left a really muffled, dull recording. He recalled that “David Schwartz helped bring them. 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 plaid flannel over his t-shirt during the whole show.”

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

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

Admittedly, this seems like a silly question to ask someone who virtually won the race on the close of the filing period, but, other than being unopposed, LaFortune credited his campaign team, including Robert Sartin and Chris Davis among others. He continued, "we had a small group who really helped the team. [Sartin] came at it with this 'shock and awe' approach of jumping out there, forming the committee early, fundraising quickly, and we hit the trail hard from January thru the close of filing.” It obviously worked because, when the dust settled, no one filed to challenge LaFortune for the race.

Who or what has inspired you most in your professional life?

“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 in environmental studies at UCSB, thinking he might like to go into a career in the forest service. There were no lawyers in his family tree. “I took three classes [at UCSB] in environmental law from some great professors and lawyers, and it retrained my focus on the law.”

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

He fondly recalls working with his mentor, Charlie Norman, on zoning and planning issues as a favorite area of his private practice days.

“As a Judge, I’m comfortable practicing in the area of criminal law because I’ve worked in and around it since I was a third year law student.” Looking back on his career, LaFortune explained that “being a Judge is a favorite of mine because I genuinely like people and helping people.”

The Tulsa World ran an editorial Jan. 24, 2015 by Jim Sturdivant about the process of judicial election versus judicial appointment, and the [OU Law Dean Earl] Sneed Plan that established the judicial nominating commission.

What is your opinion of the electoral process for our district court judiciary?

“I support the current scope of Judicial Nominating Commission selection process," stated LaFortune, “but it’s hard to deny that politics April 2015

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Tulsa County Bar Association

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

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 Trial Tactics.” The multi-media presentation focused on both strategies and practical methods to prepare for trials and motion hearings. The “nuts & bolts” suggestions they gave provided a host of great ideas for how to get started and develop persuasive and effective presentations. Due to time limitations the program was cut short and if continued interest is shown, they have offered to return to complete the program. Audience participation was high and several in the trenches learning experiences were discussed.

BUT WAIT, THERE’S MORE… Our meeting on May 19, 2015, will feature Joe Paulk, one of Oklahoma’s most experienced mediators. He will present on focus groups and mock trials. It’s bound to be an enlightening hour. Don’t forget, the meetings include lunch.

LAST–A NEW LITIGATION SECTION MEMBER BENEFIT: Any TCBA Litigation Section member who registers for a Brown Bag seminar will get an extra $5.00 off the already low registration fee. Please identify yourself as a Litigation Section member when registering. A modest foray into additional benefits but we hope you will take advantage of it.

Keep on trying.

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

Bob Redemann

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April 2015

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VP’s CORNER Matt Farris, TCBA V Vice ice President

IT’S TIME T TO O THINK ABOUT INCOME T TAXES AXES A As the 2015 tax filing deadline nears, clients with pending probate cases and trust administration matters, as well as estate planning clients, may need to be reminded they should consider planning for applicable income tax issues in addition to the more historically common planning concerns related to potential estate and gift tax liability.

Indeed, for many trust and estate clients, income tax planning has become more than important (and more relevant) than planning for the imposition of estate tax liabilities by the state and federal government.

In Oklahoma, there is no longer a state estate tax burden for decedents’ estates who passed after January 1, 2010. Moreover, Oklahoma does not impose a gift tax upon its residents.

With respect to federal estate taxes, the American Taxpayer Relief Act of 2012 1 (ATRA)2 set the federal estate, gift tax and generation-skipping transfer applicable exclusion amount at $5,000,000.00, indexed annually for inflation.3 Accordingly, in 2015, the federal estate tax exemption for an individual is $5.43 Million Dollars, which allows an individual taxpayer to transfer $5.43 Million Dollars at death without incurring any federal estate tax liability.

When combined with the portability provision as defined under ATRA § 101(c)(2) and “permanently” authorized by I.R.C. § 2010(c)(2) and the accompanying Treasury regulations, a surviving spouse may transfer his or her deceased spousal unused exclusion amount (“DSUE” – up to $5.43 Million Dollars in 2015) effectively providing a married couple with the ability to transfer

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

Income taxes, on the other hand, affect all clients and their estates. ATRA set the top individual income tax rate at 39.6% (up from 35%) and increased the top capital gains rate to 20% (up from 15%) for taxpayers with taxable income over $450,000 (joint filers), $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 rate for trusts and estates (39.6% in 2015) is imposed when assets exceed only $12,301.00! Thus, it is critically important to address income tax issues with trust and estate clients in order to attempt to reduce income tax liability, before and after death.

For example, during probate and throughout trust administration matters, fiduciaries should be aware that income attributed to a trust or estate in excess of $12,301.00 during the year will be taxed at the highest possible rate (39.6%) if the income is not timely distributed. As such, personal representatives in probate cases who receive and/or obtain income for an estate from any source (such as interest, dividends, sale proceeds and/or royalty payments, etc.) should consider filing an application with the Court for an interim order of distribution to effectuate a disbursement of some or all of the income to the estate heirs or devisees. If

an interim distribution order is issued, then the heirs or devisees will pay income tax on the distributions at their likely lower, personal income tax rates rather than the maximum estate income tax rate imposed upon trusts and estates. In lengthy probates, multiple interim orders of distribution may be appropriate in order to reduce income tax liabilities.

Similarly, trustees should remain vigilant with respect to the trust document’s terms addressing trust income and ensure it is timely distributed to the beneficiaries in order to avoid the trust paying income tax at the 39.6% maximum rate. Unhappy beneficiaries will look to the fiduciary for redress if the trust estate unnecessarily pays income tax at the highest possible rate, thus reducing distributions, when action could and should have been taken to distribute trust income thereby reducing the trust’s income tax liability.

1

See 58 O.S.2010, § 635.

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 net investment income on single tax payers with modified adjusted gross incomes in excess of $200,000.00 and upon married filers with modified adjusted 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.

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With respect to estate planning, basic estate planning has no impact on income taxes inasmuch as the execution of a will (only takes effect after death) or a revocable living trust (disregarded by the IRS for income tax purposes) does not impact a client’s income taxes. However, income tax reduction and avoidance is now of particularly interest to clients given their ability to potentially transfer over 10 Million Dollars of wealth without incurring federal estate tax liability, as discussed above. Moreover, as the Baby Boomer generation enters retirement, many clients will be seeking advice on how to reduce their income tax exposure (as well as their estate’s income tax exposure) after a lifetime of accumulating assets to support themselves in retirement. Below is a brief summary of several strategies clients may consider utilizing to reduce income taxes after consulting with a qualified estate planning attorney.

• Transfers into Trust – while a standard revocable living trust provides no income tax benefit to a grantor, certain types of trusts may be drafted to decrease income tax liability. For example, a trustor may transfer income producing assets into “spray” trusts that shift and distribute taxable income to beneficiaries in lower tax brackets. When this shift occurs, the trust is able to take a tax deduction on the distribution.

• Home Sale Exclusion – clients may be able to take advantage of the limited exclusion of income gained from the sale of a

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

• Tax Basis Planning – as noted above, income tax planning has become more important than ever after ATRA. Rather than focusing solely on removing assets from a client’s gross estate for the purpose of reducing estate tax liability, attorneys and their clients should now discuss and consider certain assets and their respective tax bases that a client may want to retain in his or her gross estate in order for those selected assets to receive a stepup in basis at the client’s death, which will reduce estate beneficiaries’ tax liability on subsequent sales. For many clients, an analysis of such income tax issues at their death will trump estate tax concerns.

• Tax Free Gifts During Life – clients may reduce the size of their estates by taking advantage of the annual federal gift tax exemption permitting each taxpayer to give up to $14,000.00 (in 2015) to as many recipients as the taxpayer wishes each year. Thus, married couples may give up to $28,000.00 each year to anyone and as many people as they wish without tax consequences. As a result, appropriate clients may be also able to reduce their gross income in order to decrease the IRS’s income-based phase outs of certain

personal exemptions and itemized deductions.

• Charitable Giving – there is no limit on charitable giving. Thus, a taxpayer may reduce the size of his or her estate and the related income tax burden by giving to charity. Similarly, there is also no limit on gifts of tuition or medical expenses if the taxpayer gives directly to the institutional provider. Moreover, taxpayers concerned about offsetting income tax liability may consider setting up a Charitable Remainder Trust (“CRT”), a Charitable Lead Trust (“CLT”), a Donor Advised Fund (“DAF”) or even a Private Foundation if the charitable donation is large enough.

The above strategies are but a few estate planning options available to taxpayers more concerned with income tax liability than estate tax liability and are included to encourage a dialogue between attorneys and their clients regarding income tax planning.

With regard to income tax issues impacting all trust and estate clients, including fiduciaries, the federal estate, gift tax and generation-skipping transfer applicable exclusion amount made “permanent” by ATRA will continue to grow over and above its current level of $5.43 Million Dollars as it is adjusted for inflation. It follows that such clients will surely seek an increased amount of understanding and counsel specific to income tax planning from their attorneys.

Professionalism Top Ten Tips - #4 Be Respectful

By Fred Slicker

The April, 2010 Your Your ABA Newsletter announced a new ABA book entitled “The Busy Lawyer’s Lawyer ’s Guide to Success”

by Reid F F.. T Trautz rautz 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 mo month. onth.

April 2015

• • • • • • • •

Treat others with respect.

Treat 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 You get back what you y 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.

Put these on your April Agenda

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First Impressions: The Artwork of Grace Grothaus Everyone knows that when meeting a potential client, making a good first impression is important. What you may not consider is that when a client visits your office, the first impression begins before they even meet you; it begins when they walk through your door. Barrow & Grimm, PC knows the importance of this impression and that is why Bill Grimm and Allen Barrow recently commissioned nationally known artist Grace Grothaus to create a custom painting for their entryway.

Visitors to their office are greeted to a visual display as soon as they step off the elevator, even before they enter the double glass doors to the reception area.

Since Tulsa is the home to Barrow & Grimm’s law practice and a majority of their clients, they commissioned a three panel colorful panorama of local points of interest. Center stage is a beautiful skyline of the city with a free flowing Arkansas River. Flanking each side of the skyline are two separate panels showing the grassy rolling hills of the Tallgrass Prairie with roaming buffalo and an oil pump-jack. The paintings signal eye-catching, richly-painted hues of local features important to the roots of Barrow & Grimm and their clients. Grothaus’ work is uniquely perfect for an office because it is back lit from within

by LEDs and provides ambient lighting as well as captivating threedimensional 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 and a year in the Master’s program at the University of Oklahoma, she enjoyed creating sculptures but missed painting. Longing to combine her 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 in 2007, 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, among her other honors. Local corporate collections include Cimarex Energy, Oklahoma State University, Saint Francis Hospital and RotoHammer Inc. While she and her work may sometimes travel great distances, she is proud to call Tulsa home, saying “the sense of community here is like none 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

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The public’s perception of the legal profession is very negative.

This perception is, I believe, unfair, inaccurate and untrue. There are many reasons for the negative perception, some of which include the following: 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.

protecting the Rule of Law. Some but certainly not all of the activities undertaken by lawyers include the following: Lawyers stand for election to public office, often at great personal sacrifice.

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 districts and similar entities, often without compensation.

Lawyers volunteer as leaders and board members for various charitable entities and not-for-profit causes, often without compensation.

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 notfor-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 our society free and orderly and to advance the principles of equal justice for all. While lawyers are generally excellent at persuasion, the legal profession has not been effective at persuading the public about the good the profession does. We need to do better for the good of the profession and for the good of the Rule of Law.

The public’s perception is formed by the media, which portrays lawyers badly. The public does not understand the adversarial system which pits lawyers against lawyers. The public does not understand the exclusionary rule, which excludes truthful evidence from jury consideration. The public does not know what lawyers really do. The legal process is long, tedious, uncertain and expensive. The client’s expectations are often unrealistic. Clients have little contact with lawyers except in crisis. Lawyer jokes demean the profession. The public has no insurance to pay lawyers.

There is some truth in some of these perceptions, but the public’s perception of the legal profession as a whole is mostly misguided.

Individual lawyers and the legal profession as a whole have not done a persuasive and effective job of informing the public about the good that lawyers do.

The truth is that the legal profession is a learned and honorable profession. Most lawyers are honest, competent, hardworking, caring, compassionate, respectful, effective counselors and public citizens.

Most lawyers devote at least some of their time, attention and experience free for charitable, religious or community service projects. Many lawyers are not paid by their own clients for the good work they do, even when the client does not dispute the invoice.

The truth is that lawyers do an enormous amount of good, both for their clients and for the public. Lawyers play a fundamental and an essential role in maintaining public order and in preserving and

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April 2015

Casey Cooper joins GableGotwals as a new Shareholder in the Tulsa office. Cooper’s primary focus will be complex litigation, corporate services, environmental services, oil and gas matters and the law of higher education. Cooper is a former attorney in the U.S. Navy’s Judge Advocate General’s Corps.

Cooper received his J.D. from University of Tulsa School of Law. He also earned a Bachelor of Science in Business Administration, from the University of Tulsa.

Grapevine

Stacy M. Brklacich joins GableGotwals as an Of Counsel Attorney in the Tulsa office where she will focus on healthcare law. A former Tulsa County Assistant District Attorney, Brklacich earned her Juris Doctor from the University of Tulsa College of Law in 2008. She earned her Bachelor of Science in 2000 from the University of Central Arkansas.

The law firm of Richards & Connor is pleased to announce that Lawrence R. Murphy, Jr., has become a partner with the firm. Mr. Murphy is national coverage counsel for State Auto Insurance Companies. He attended the University of Tulsa College of Law and, in addition to his coverage practice, he maintains a general litigation practice. He has been involved in the successful resolution of major class action and bad faith cases and is currently involved in matters 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 local businesses in complex business litigation disputes. _________

_________

Sam P. Daniel celebrates 50 years with Doerner, Saunders, Daniel & Anderson on April 1. Sam has become an Oklahoma legend in family law, including divorce, custody, guardianship, and property division issues. He has been a leading commercial litigator and banking lawyer as well. A named partner since his first day at the firm in 1965, Sam has dedicated his professional life to serving clients and has been 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 anything else. 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. I like the give and take of solving people’s problems and I have found it satisfying even though it can be a battle.”

Congratulations to Sam from all his friends and colleagues!

Q __________

Timothy L. Rogers has been elected a preferred shareholder at Barrow & Grimm, P.C. in Tulsa, where he focuses on business litigation, construction litigation, employment and surety law. He graduated from the University of Tulsa College of Law in 2008.

_________

Q __________

_________

Eller & Detrich, P.C. announces that Heidi L. Shadid has joined the firm as an associate attorney. Ms. Shadid earned her B.A. Degree, magna cum laude, in 2004 from the University of Tulsa. She received her J.D. from the University of Kansas School of Law in 2008 and was admitted to the Kansas and Missouri Bars in 2009 and the Oklahoma Bar in 2010. Ms. Shadid’s practice emphasis will be in litigation, commercial transactions and real estate.

April 2015

Q __________

Q __________

Doerner, Saunders, Daniel & Anderson is pleased to announce that former Judge William C. Kellough has joined its Tulsa office.

Kellough served as a district judge in Oklahoma’s 14th Judicial District in Tulsa County for eight years. He has many general practice capabilities but will concentrate on dispute resolution, litigation and healthcare. “We are proud of the addition of former Judge Kellough to our roster of fine attorneys. He will provide Doerner Saunders with an even greater depth of knowledge and skill in both transactional and litigation arenas,” said David Herrold, the firm’s Managing Partner.

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The board of directors of McAfee & Taft, Oklahoma’s largest law firm, has named lawyers Mary Quinn Cooper and Charles Greenough from its Tulsa office and Barrett Ellis and Erin Van Laanen from its Oklahoma City office to serve as new practice leaders for the 2015 term.

Trial lawyer Mary Quinn Cooper was appointed to co-lead the state’s largest litigation practice with returning co-leader Brad Donnell. Cooper serves as trial counsel for a number of Fortune 500 corporations, including Ford Motor Company and General Motors, and defends product liability claims and class actions across the country. Her practice includes defending clients in professional malpractice cases.

Barrett Ellis was named leader of the firm’s Banking and Financial Institutions Group. Ellis advises corporate and financial institution clients in a wide range of transactional matters, with a particular emphasis on finance transactions and regulatory compliance. He is particularly regarded for his experience in representing banks and borrowers in structuring financing arrangements around complex corporate structures or regulatory requirements.

Tulsa T ulsa Lawy Lawyer y yer b i i n Guide G Submission

Charles Greenough was appointed leader of the firm’s Business Restructuring, Workouts and Bankruptcy Group and has extensive experience in financial, debtor/creditor, and bankruptcy matters, representing both lenders and borrowers, as well as serving as a trustee and as a liquidating agent in complex bankruptcy estates. He has represented banks and other financial institutions in all aspects of loan documentation, workouts and related litigation, including counterclaims brought by borrowers in problem loans. He also serves as a Chapter 7 trustee for the Northern and Eastern Districts of Oklahoma.

As the new leader of the firm’s Aviation Group, Erin Van Laanen oversees one of the largest and most experienced FAA aircraft title and financing legal teams in the United States.

Her practice is concentrated in the areas of aircraft title, registration, financing and leasing and related matters concerning the United States Federal Aviation Act, the FAA Aircraft Registry in Oklahoma 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 and internationally in the areas of aviation, banking, business restructuring and 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, and has offices in both Oklahoma City and Tulsa.

Firms: Firm annc. that include multiple Include captions & names. Photos cannot persons should not exceed 400 words be returned w/o self-addressed stamped envelope. max.

ontact DISPLA Y ADVERTISING: C DISPLAY Contact accounting@tulsabar .com , or visit our accounting@tulsabar.com .tulsabar.com to download website www www.tulsabar.com the rates & advertising guidelines.

Individual Announcements: Individual announcements, relocation notices, award announcements, solo notices and similar items should not exceed 175 words.

CLASSIFIED ADVERTISING: $25.00 for 40 words and .25 for each additional word., payment for classified ads must be received at the time the ad is placed.

Please include with your written advertisement payment for the correct amount. (i.e. $25 x 3 months = $75.00).

Pictures: Pictures are welcome. Please use the name of the person as the title of the picture when submitting.

DEADLINES: TL deadline is always the 1st of the month PRIOR to publication.

(Example: October issue = September 1stt deadline. The Friday before the 1st if it falls on a weekend or holiday .) holiday.)

Tulsa Lawyer will make every attempt to Tulsa include announcements received by the deadline in the next available issue. If space space rruns uns llow, ow, w wee w will ill hhold old yyour our announcement until the next issue.

---------------------------------------------------------Submissions may be edited for length at G R A P E V I N E S U B M I S S I O N our discretion.

REQUIREMENTS: PHOTOS: Accepted on disk or email, .jpg Submissions that exceed these limits will PHOTOS: be edited as necessary necessary. ecessaryy. Send to or .tif format, 300 dpi minimum sent to tulsabarnews@yahoo.com tulsab barnews@yahoo.com oorr pprovide rovide a tulsabarnews@yahoo.com tulsabarnews@yaho oo.com hard copy to the Bar Center for scanning.

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April 2015

T TCBA CBA BRO BROWN WN BAG BAG CLE LECTURE SERIES: April April 3 30 0th – Judge Millie Otey will be reviewing the updated Misdemeanor Docket Forms May 28th – Justice John F. F. Reif will provide perspective on the Separation of Powers Tulsa Tulsa County Courthouse Room #605 1.0 Hour CLE Credit TCBA A Members $30 / Non-Members $45 / Audit $5 *Judges who are TCBA A Members M are welcome to attend free of char charge ge

Registration due by Noon the day before each seminar Late/Walk-in Late/W Walk-in alk in registration subject to late fee Registration Required: Visit Visit www www.tulsabar.com .tulsabar.com to register

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