February 2020 Journal • Vol. 89, No. 2

Your Partner in the Profession | February 2020 • Vol. 89 • No. 2

Justice Delayed:

My Journey Inside the Secret Tent Courts Where Refugees are Being Denied Dignity and Due Process

by Rekha Sharma-Crawford P6

Resting in Pieces:

Why Family Harmony is a Frequent Casualty of Most Estate Plans

by Tim O’Sullivan P 32

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6| Justice Delayed:

My Journey Inside the Secret Tent Courts Where Refugees are Being Denied Dignity and Due Process

by Rekha Sharma-Crawford

32| Resting in Pieces: Why Family Harmony is a Frequent Casualty of Most Estate Plans

by Tim O’Sullivan

Cover Design by Ryan Purcell

Special Features 21 | 2020 Legislative Preview................................................................ Joseph N. Molina III 25 | DCF Series: Child Welfare System Task Force Update..........................Linda Gallagher 51 | Intersection of Domestic, CINC, and Juvenile Offender Laws, and What Lawyers Should Advise Clients About Them............................................... Hon. Kevin M. Smith

Regular Features 15 | KBA President

There are Not Enough Hours in a Day— How We Should Treat Our Most Valuable Resource ............................................................Mira Mdivani

18 | YLS President

Active Educational Outreach is Part of YLS Mission: .

Looking Ahead to Law Day 2020....Mitch Biebighauser

20 | February CLEs

Love to Learn? Take a CLE!

24 | Kansas Bar Foundation

Need a Trust Account? Consider IOLTA

28 | Law Practice Management Tips and Tricks

The Consumer Electronics Show......... Larry Zimmerman

57 | Law Students’ Corner

Environmental Justice—It’s Our Problem, Too .............................................................. Hannah Lustman

60 | Members in the News 62 | Obituaries 65 | Appellate Decisions 71 | Appellate Practice Reminders

Have 2020 Vision The Year: Appellate Courts ........

Docket Weeks............................... Douglas T. Shima

72 | Advertising Directory NEW 73 | Classified Advertisements

www.ksbar.org | February 2020 3

2019-20

President-elect Charles E. Branson, cbranson@douglas-county.com

THE

JOURNAL

Let your VOICE 2019-20 be Heard!

KBA Officers & Board of Governors

OF THE KANSAS BAR ASSOCIATION

Journal Board of Editors Emily Grant (Topeka), chair, emily.grant@washburn.edu Sarah G. Briley (Wichita), sbriley@morrislaing.com Hon. David E. Bruns (Topeka), brunsd@kscourts.org Richard L. Budden (Kansas City), rbudden@sjblaw.com Boyd A. Byers (Wichita), bbyers@foulston.com Jennifer Cocking (Topeka), jcocking@capfed.com Connie S. Hamilton (Manhattan), jcham999@gmail.com Michael T. Jilka (Lawrence), mjilka@jilkalaw.com Lisa R. Jones (Ft. Myers, FL), ljones@fgcu.edu Casey R. Law (McPherson), claw@bwisecounsel.com Hon. Robert E. Nugent (Wichita), judge_nugent@ksb.uscourts.gov Professor John C. Peck (Lawrence), jpeck@ku.edu Rachael K. Pirner (Wichita), rkpirner@twgfirm.com Richard D. Ralls (Overland Park), rallslaw@turnkeymail.com Karen Renwick (Kansas City), krenwick@wrrsvlaw.com Jennifer Salva (Kansas City), jenniferhsalva@gmail.com Teresa M. Schreffler (Wichita), tschreffler@gmail.com Richard H. Seaton Sr. (Manhattan), seatonlaw@sbcglobal.com Sarah B. Shattuck (Ashland), bootes@ucom.net Richard D. Smith (Topeka), rich.smith@ag.ks.gov Marty M. Snyder (Topeka), marty.snyder@ag.ks.gov Patti Van Slyke, Journal Editor & Staff Liaison, pvanslyke@ksbar.org Catherine A. Walter (Topeka), cwalter@topeka.org Meg Wickham, Dir. of Communications & Member Svcs., mwickham@ksbar.org Issaku Yamaashi (Overland Park), iyamaashi@foulston.com Natalie Yoza (Topeka), nyoza@ksbar.org The Journal Board of Editors is responsible for the selection and editing of all substantive legal articles that appear in The Journal of the Kansas Bar Association.

The board reviews all article submissions during its quarterly meetings (January, April, July, and October). If an attorney would like to submit an article for consideration, please send a draft or outline to Patti Van Slyke, Journal Editor at editor@ksbar.org.

Ryan Purcell, graphic designer, rpurcell@ksbar.org The Journal of the Kansas Bar Association (ISSN 0022-8486) is published monthly with combined issues for July/August and November/December for a total of 10 issues a year. Periodical Postage Rates paid at Topeka, Kan., and at additional mailing offices. The Journal of the Kansas Bar Association is published by the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806; Phone: (785) 234-5696; Fax: (785) 234-3813. Member subscription is $25 a year, which is included in annual dues. Nonmember subscription rate is $45 a year.

Vice President Cheryl Whelan, cwhelan@ksbar.org Secretary-Treasurer Nancy Morales Gonzalez, nancy.gonzalez@ssa.gov Immediate Past President Hon. Sarah E. Warner, warners@kscourts.org Young Lawyers Section President Mitch Biebighauser, mitch_biebighauser@fd.org District 1 Michael J. Fleming, mike@kapkewillerth.com Katie A. McClaflin, kmcclaflin@mkmlawkc.com Diana Toman, dianatoman@gmail.com District 2 Bethany Roberts, broberts@barberemerson.com District 3 Angela M. Meyer, angela@angelameyerlaw.com District 4 Brian L. Williams, bwilliams.lawoffice@gmail.com District 5 Vincent Cox, vcox@cavlem.com Terri J. Pemberton, tpemberton@kcc.ks.gov District 6 Tish S. Morrical, tish.morrical@hamptonlaw.com District 7 Gary L. Ayers, gayers@foulston.com Hon. Jeffrey E. Goering, jgoering@dc18.org Megan S. Monsour, mmonsour@hinklaw.com District 8 Gaye B. Tibbets, tibbets@hitefanning.com District 9 Aaron L. Kite, aaron@rbr3.com District 10 Gregory A. Schwartz, gaschwartz@schwartzparklaw.com District 11 Mark Dupree, mdupree@wycokck.org District 12 Alexander P. Aguilera, alex@sbhlaw.com Bruce A. Ney, bruce.ney@att.com John M. Shoemaker, johnshoemaker@butlersnow.com At-Large Governor Eunice Peters, peterse28@gmail.com KDJA Representative Hon. James R. Fleetwood, jfleetwo@dc19.org KBA Delegate to ABA House Natalie G. Haag, nhaag@capfed.com Eric Rosenblad, rosenblade@klsinc.org

The Kansas Bar Association and the members of the Board of Editors assume no responsibility for any opinion or statement of fact in the substantive legal articles published in The Journal of the Kansas Bar Association.

Copyright Š 2017 Kansas Bar Association, Topeka, Kan.

ABA State Delegate Linda S. Parks, parks@hitefanning.com

For display advertising information, contact: Bill Spilman at (877) 878-3260 toll-free, (309) 483-6467 or email bill@innovativemediasolutions.com

Interim Executive Director Karla Whitaker, kwhitaker@ksbar.org

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Publication of advertisements is not to be deemed an endorsement of any product or service advertised unless otherwise indicated.

POSTMASTER: Send address changes to The Journal of the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806.

4

President Mira Mdivani, MMdivani@uslegalimmigration.com

The Journal of the Kansas Bar Association

YL Delegate to ABA House Joslyn Kusiak, jkusiak@kellykusiaklaw.com

Our Mission The Kansas Bar Association is dedicated to advancing the professionalism and legal skills of lawyers, providing services to its members, serving the community through advocacy of public policy issues, encouraging public understanding of the law, and promoting the effective administration of our system of justice.

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Justice Denied:

My journey inside the secret tent courts where refugees are being denied dignity and due process A First Hand Report

by Rekha Sharma-Crawford

“What I saw was not due process.

It was not the rule of law. It was lawlessness.”

C

ourts are supposed to be about due process, fairness and the rule of law. Yet, I did not find justice at work in the canvas tents set up near the southern border to house secretive immigration courts. Advocates had, for months, warned of unconstitutional treatment of migrants and fundamental breakdowns in the judicial process.

Given the stakes, I had to see it for myself.

Early in December 2019, as a Kansas City attorney fighting for the rights of immigrants and refugees, I flew to Brownsville, Texas and crossed into Matamoros, Mexico where hundreds of Central American migrants are waiting for their turn to see an immigration judge. Under the “Migrant Protection Protocol” created by President Donald Trump, people fleeing persecution and seeking asylum protections from the United States are forced to wait in Mexico until their cases are resolved by an immigration judge. Until recently, the government adhered to international standards on the treatment of refugees, allowing asylum seekers to live in the country while waiting for a final immigration decision. The MPP policy is a

6

The Journal of the Kansas Bar Association

radical departure from long-standing asylum procedure that puts migrants at risk of new violence.

In Brownsville, I saw that the injustices do not end there.

On hearing days, Customs and Border Protection agents allow migrants to cross from Matamoros to Brownsville into an unnamed city of tents. The canvas cloaks beige shipping containers, which have been converted into “courtrooms.”

Unlike those found across the United States, which are open to the public, this “courthouse” is inaccessible except to a limited few. Security guards allow only those with official, approved business to pass through the chain-link gates and locked doors. The public is barred from inspecting its government at work. I got in only because I was assisting another attorney with her work.

As I entered a double-wide container room, I noticed a gnawing in the pit of my stomach that something here was just not right. A huge black screen was the first indication the judge was not going to be in the room at all. In front of the television were a small table and two chairs for the attorney and her client

justice denied

to sit. Migrants waiting for their turn to tell a judge about the horrors they have lived sat at the back of the room in rows of black chairs bolted to the floor and zip tied together. The space felt clinical and devoid of human compassion.

Before court even began, these were not the only signs that something was wrong. I saw intimidation throughout my visit. No one was spared.

I watched as migrants waited hours for a hearing that usually lasted a few minutes. All of them, regardless of what time their court appearance was, had been ordered to appear on the international bridge by 4 a.m. for processing. Being late could result in being denied the ability to even see the judge.

So, many endured the dangerous and cartel-ridden roads in the darkness of night just to have the chance to tell their story to an American immigration judge.

Attorneys and their migrant clients—men, women, teenagers and children—were escorted every place they went.

Families were locked in ice-cold waiting rooms. CBP Agents ruthlessly interrogated asylum seekers in enhanced screenings despite the immigrants’ having broken no law by seeking refuge in America.

Attorneys like me have been denied access to clients when we question the way things work in these circus tents. Despite long-standing court procedure, lawyers must turn over their phones, computers and other electronics. The goal is to make representation difficult.

Everything about this place was designed to break the lawyers and migrants until we quietly surrendered to the immorality surrounding us. American justice is the ideal that due process and the rule of law matter. Yet, both have been corrupted here.

Nearly 45 minutes after court was scheduled to begin, a slight woman dressed in a black robe appeared on the huge television screen. Rows of exhausted migrants gasped and their eyes widened. The tension in the room was tangible.

Court had started, but the government’s attorneys could not be seen. They were in the room with the judge, hidden beyond the view of the camera that connected them to this metal box under a tent in the desert. Typical courts demand the accuser must face the accused, but here the government lawyers hid behind an electronic veil as they challenged every refugee’s claims. So cavalier is the process that the government’s attorneys didn’t even bother to go through the charade of bringing in a case file. It seems not to matter who is seeking asylum because the government lawyers’ arguments are the same every time. It feels like they are willing actors in a legal con job.

At the start of each short hearing, the judge mundanely asked if the attorneys were ready to proceed. When lawyers like myself pointed to clear legal error in the government’s documents or in the procedure, the judge noted it and dismissed it with an effortlessness indicative of routine. One gets the distinct feeling that no matter how valid the challenge, the decision to overrule it had already been made.

The migrants remain hopeful and fearful when it is their turn to sit before the screen framing the distant judge, largely unaware of the parody in front of them because they are not provided immediate translation of the proceedings.

As I was escorted by security guards out of the box-turnedcourt and the tent and the gates, I understood what my colleagues had been saying: The whole process is a sham meant only to give the ceremonial appearance of due process.

It is evident that this isn’t a real court. These aren’t independent judges devoted to the rule of law. Instead, they have become weaponized and are now part of a secretive deportation machine constructed to chew up the hopes and dreams of families fleeing persecution. What I saw was not due process.

It was not the rule of law. It was lawlessness.

As I returned to Kansas City, I decided to share my story.

More people need to understand what is happening because lawlessness in one court, if tolerated, threatens constitutional protections in every court. Attorneys being actively prevented from meaningful representation, if tolerated, threatens representation for every vulnerable individual. Silence by the public in the face of such governmental abuse, if not altered, threatens democracy at its core. n About the Author Rekha Sharma-Crawford is a frequent instructor at the American Immigration Law Foundation Litigation Institute and speaker at the American Immigration Lawyers’ Association national conference. Rekha and her husband, Michael, established The Clinic at Sharma-Crawford to close the gap between low-income immigrants facing removal and the availability of qualified, affordable representation with the U.S. Immigration Court. Rekha received her Juris Doctor from Michigan State University College of Law and is licensed in three states. The Missouri Bar Association awarded the Pro Bono Publico Award in 2017 to Rekha and Michael; Rekha was awarded the KBA’s Courageous Attorney Award in 2018.

Rekha@Sharma-Crawford.com www.ksbar.org | February 2020 7

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The Journal of the Kansas Bar Association

with a

Nomination

• Phil Lewis Medal of Distinction • Distinguished Service • Professionalism • Pillars of the Community • Christel Marquardt Trailblazer Award • Distinguished Government Service • Courageous Attorney • Outstanding Young Lawyer • Diversity • Outstanding Service • Pro Bono

Learn more about the awards online at

www.ksbar.org/awards

www.ksbar.org | February 2020 9

2020 Awards of the KBA The KBA Awards Committee is seeking nominations for award recipients for the 2020 KBA Awards. These awards will be presented in June at the KBA Annual Meeting in Wichita. Below is an explanation of each award and a nomination form for completion. The Awards Committee, chaired by Sara Beezley, of Girard, appreciates your help in bringing worthy nominees from throughout the state of Kansas to the committee’s attention!

Deadline for nominations is Friday, March 6.

Phil Lewis Medal of Distinction The KBA’s Phil Lewis Medal of Distinction is reserved for individuals or organiza­tions in Kansas who have performed outstanding and con­spicuous service at the state, national, or international level in administration of justice, science, the arts, government, philosophy, law, or any other field offering relief or enrich­ment to others.

• A recipient need not be a member of the legal profession or related to it, but the recipient’s service may include responsibility and honor within the legal profession; • This award is only given in those years when it is determined that there is a worthy recipient.

Distinguished Service Award

This award recognizes an in­dividual for continuous long-standing service on behalf of the legal profession or the public, rather than the successful ac­complishment of a single task or service.

•

•

The recipient must be a lawyer and must have made a significant contribution to the altruistic goals of the legal profession or the public; Only one Distinguished Service Award may be given in any one year. However, the award is given only in those years when it is determined that there is a worthy recipient.

Professionalism Award

This award recognizes an individual who has practiced law for 10 or more years who, by his or her conduct, honesty, integrity, and courtesy, best exemplifies, represents, and encourages other lawyers to follow the highest standards of the legal profession.

Pillars of the Community Award

This award is available to a Kansas lawyer and KBA member with a minimum of 10 years active non-specialized, general legal practice in a predominately low-density population area of Kansas. Recipients will have had substantial practice in small or solo law firms or local government service. Requirements are flexible but consideration will be given to the following factors, including how such factors apply to the lawyer’s community:

• • • • • • • • • • •

the variety/diversity of law practiced impact/high profile law work general contributions to the law and legal profession specific contributions to the legal profession mentoring and support for legal education contributions to the State/community notable civic activities periods of elected or appointed public/government service military service examples of volunteerism and charitable activity reputation in the organized bar, State and community

This award may be but need not be given every year. More than one recipient can receive the award in a one year.

Christel Marquardt Trailblazer Award This award is named in honor of Hon. Christel Marquardt, the first woman to serve as President of the Kansas Bar Association, by recognizing exceptional KBA members who break new ground, shatter glass ceilings, or pave new paths for others to follow. The award is bestowed upon a member who has made innovative contributions to improve the legal profession or our communities, exhibiting courage, leadership, professional excellence, and service to the profession in a manner that makes a substantial and positive impact on all those who follow in his or her footsteps. The award will be given to a KBA member who demonstrates qualities Judge Marquardt has exemplified, such as: • • • •

Service to the Bar or to the legal profession generally; Courage in challenging societal, institutional, or historical barriers; Innovation and carving a path for future lawyers through mentorship, hard work, and compassion; Leadership by word and example.

The Trailblazer Award will be given in years where there is a worthy recipient.

Distinguished Government Service Award

This award rec­ognizes a Kansas lawyer who has demonstrated an extraordi­nary commitment to government service.

The recipient shall be a Kansas lawyer, preferably a member of the KBA, who has demonstrated accomplishments above and beyond those expected from persons engaged in similar government service. The award shall be given only in those years when it is deter­mined that there is a recipient worthy of such award.

Courageous Attorney Award

The KBA created a new award in 2000 to recognize a lawyer who has displayed exceptional courage in the face of adversity, thus bringing credit to the legal profession. Examples of recipients of this type of award in other jurisdictions include a small town lawyer who de­fended a politically unpopular defendant and lost most of his livelihood for the next 20 years, an African-American crimi­nal defense attorney who defended two members of the white supremacist movement, and a small town judge who lost his position because he refused the town council’s request to meet monetary quotas on traffic offenses. This award will be given only in those years when it is determined that there is a wor­thy recipient.

Outstanding Young Lawyer

This award recognizes the efforts of a KBA Young Lawyers Section member who has rendered meritori­ous service to the legal profession, the community, or the KBA. Diversity Award

This award recognizes an individual who has shown a continued commitment to diversity; or a law firm; corporation; governmental agency, department, or body; law-related organization; or other organization that has significantly advanced diversity by its conduct, as well as by the development and implementation of diversity policies and strategic plans, which include the following criteria: • • • • • • • •

A consistent pattern of the recruitment and hiring of diverse attorneys; The promotion of diverse attorneys; The existence of overall diversity in the workplace; Cultivating a friendly climate within a law firm or organization toward diverse attorneys and others; Involvement of diverse members in the planning and setting of policy for diversity; Commitment to mentoring diverse attorneys, and; Consideration and adoption of plans to continue to improve diversity within the law firm or organization, whereas; Diversity shall be defined as differences of gender, skin color, religion, human perspective, as well as disablement.

The award will be given only in those years when it is determined there is a worthy recipient.

Outstanding Service Award(s) These awards are given for the purpose of recognizing lawyers and judges for service to the legal profession and/ or the KBA and for recognizing nonlawyers for especially meritorious deeds or service that significantly advance the administration of justice or the goals of the legal profession and/or the KBA. • No more than six Outstanding Service Awards may be given in any one year.

• Recipients may be lawyers, law firms, judges, nonlawyers, groups of individuals, or organizations.

Outstanding Service Awards may recognize:

• Law-related projects involving significant contributions of time; • Committee or section work for the KBA substantially exceeding that normally expected of a committee or section member; • Work by a public official that significantly advances the goals of the legal profession or the KBA; and/or • Service to the legal profession and the KBA over an extended period of time.

Pro Bono Award(s)

This award recognizes a lawyer or law firm for the delivery of direct legal services, free of charge, to the poor or, in appropriate instances, to charitable organizations whose primary purpose is to provide other services to the poor.

•

No more than three Pro Bono Awards may be given in any one year.

In addition to the Pro Bono Award, the KBA awards a number of Pro Bono Certificates of Appreciation to lawyers who meet the following criteria: • Lawyers who are not employed full time by an organization that has as its primary purpose the provision of free legal services to the poor; • Lawyers who, with no expectation of receiving a fee, have provided direct delivery of legal services in civil or criminal matters to a client or client group that does not have the resources to employ compensated counsel; • Lawyers who have made a voluntary contribution of a significant portion of time to providing legal services to the poor without charge; and/or • Lawyers whose voluntary contributions have resulted in increased access to legal services on the part of low and moderate income persons.

KBA Awards Nomination Form Nominee’s Name ________________________________________________________________ Please provide a detailed explanation below of why you have nominated this individual for a KBA Award.

Attach additional information as needed. q q q q q q

Phil Lewis Medal of Distinction Distinguished Service Award Professionalism Award Pillars of the Community Award Christel Marquardt Trailblazer Award Distinguished Government Service Award

q q q q q

Courageous Attorney Award Outstanding Young Lawyer Diversity Award Outstanding Service Award Pro Bono Award/Certificates

______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ Nominator’s Name ______________________________________________________________ Address _______________________________________________________________________ _______________________________________________________________________ Phone ______________________________ E-mail____________________________________ Return Nomination Form by Friday, March 6, 2020, to: KBA Awards Committee Attn: Deana Mead 1200 SW Harrison St. Topeka, KS 66612-1806

Thank you for helping us meet the challenge!

Stange Law Firm, PC Attorneys Recognized by 2019 Missouri & Kansas Super Lawyers Magazine

KBA YLS raised $2,500 for the

2020 Mock Trial Competition The KBA YLS Mock Trial Competition is only weeks away. Funding for this program includes a $1,000 gift from the Shook, Hardy & Bacon, L.L.P. Mock Trial endowed fund and $2,500 from an IOLTA grant. Your generosity helped KBA YLS raise another $2,500 in sponsorships; now, the KBF Board of Trustees will entertain a request for another $2,500.

Kirk C. Stange, Esq. Founding Partner

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•

Kirk C. Stange is on the list of Super Lawyers for Family Law in 2019 by Missouri & Kansas Super Lawyers Magazine.

Kelly M. Davidzuk, Partner • Paola A. Stange is on the list of Rising Stars for Family Law in 2019 by Missouri & Kansas Super Lawyers Magazine.

• Jillian A. Wood is on the list of Rising Stars for Family Law in 2019 by Missouri & Kansas Super Lawyers Magazine.

855-805-0595 I WWW.STANGELAWFIRM.COM

Note: The choice of a lawyer is an important decision that should not be based solely upon advertisements. Kirk C. Stange is responsible for the content. Principal place of business 120 South Central Avenue, Suite 450, Clayton, MO 63105.

Interested in writing for The Journal of the Kansas Bar Association?

The Journal is on the lookout for authors and ideas for substantive articles! Send us an outline!!!

Love to write, but don’t have the time to do a heavily researched issue article? How about writing a feature for us?

–A historical piece?

–A humorous piece?

–A biography/interview with a mentor or someone in the law you admire?

Submit written features or outlines (for substantive articles) to: Patti Van Slyke • editor@ksbar.org Questions? Call 785-861-8816

Friday • April 17, 2020 Tony’s Convention Center Salina, KS

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14

The Journal of the Kansas Bar Association

kba president’s column

There are Not Enough Hours in a Day— How We Should Treat Our Most Valuable Resource

by Mira Mdivani

KBA’s Chiefs game event, December 1, 2019

T

his month, my schedule is intense. I am reminded on a daily basis that our most valuable resource is time.

With only 24 hours in a day, and if we are lucky enough to spend at least a few of those hours sleeping, we realize we have limited time to accomplish things we have to do and hopefully have a little time left to do what we want to do.

For many lawyers, giving time to our clients is often how we make a living. It is not only the number of hours that we give to our clients that is increasing daily, but also, the intensity. Because of the internet and electronic research tools, we can produce more briefs, more research memos, and draft more pleadings faster than ever before. Whatever question is asked by a client or a colleague tends to be answered faster and faster. I attended an ethics CLE several years ago where a presenter shared research showing very different expectations of how long it should take a lawyer to get back to a client.

Lawyers thought it would be reasonable to get back to a cli

ent within 24 hours. Clients, not so much. Clients said that if their lawyer didn’t get back to them within 30 minutes, they felt abandoned. Clients felt that the lawyer did not care or that the lawyer was not a good lawyer. We obviously care about our clients. When we hear from clients on weekends and after hours, we often reply, even when we are at our children’s soccer games, while grocery shopping, or even while on vacations. Have you taken a non-working vacation lately where you truly did not answer emails from colleagues and clients? I haven’t.

So how do we deal with the ever-increasing demands on our time and ever-shrinking response expectations without losing it? I don’t have all the answers, but here are some thoughts: we should give priority to our family, friends, and colleagues—then we will be sane enough to take really good care of our clients!

www.ksbar.org | February 2020 15

kba president’s column

New Year Eve silliness with my son Alexey Ayzin Let’s remember WHY we work. We work to live, not the other way around. So, first order of business is to make time With KBA friends at Annual Meeting 2019 for our loved ones. We will feel more in control of our lives if our date nights are is not subject to unreasonable work ex- we get depressed, and that is where friends are a must. Friends pectations. If we are caught up with our work, we should not nourish your soul— especially if they are KBA members! have to miss our kid’s soccer game because of last minute un- Colleagues reasonable requests; if our beloved dogs are looking forward I had a delightful time with my colleagues at the Des to our evening walk, that should not get cancelled because someone wants an update on their case at 8:00 p.m.—this Moines Art Center. And our firm took a trip to Cancun that obviously includes cats, parrots and other important family was such fun -- a great time to get to know each other away members who may want to go on a walk. If we give them from the pressures of the office! time, they give us back a lot of love and help keep us sane.

With KBA members at the ABA meeting Friends, Especially KBA Friends

Mira with former KBA President, Hon. Sarah Warner

It is not optional for lawyers to make time for friends. Nick Badgerow gave an excellent presentation to lawyers involved with Kansas Board for Attorney Discipline. Based on much scholarly research, he explained that lawyers are off the charts smart, off the charts autonomous and industrious, but also “asocial and catastrophically low on resilience.” When we don’t win, we tend to take it personally, we blame ourselves, 16

The Journal of the Kansas Bar Association

If you are lucky, your colleagues are your friends and family. If they are just great colleagues, you still owe them respect by enabling them to go home on time, not to rush on all deadlines all the time, and to take meaningful vacations.

KBA is playing its part by organizing excellent events for lawyers. This past year alone, in addition to an excellent annual meeting and CLEs that provide opportunities for networking and camaraderie, KBA members enjoyed their first outing at Kansas City Lyric Opera, which included a pre-opera dinner and performance of La Boheme. The KBA also had a day at Arrowhead stadium watching a KC Chiefs game. We are working on additional opportunities for KBA members to reclaim some of our overcrowded schedules and take control of our most valuable resource: time. n About the KBA President Mira Mdivani is current KBA President.

She practices business immigration law at MDIVANI CORPORATE IMMIGRATION LAW FIRM. She loves her KBA friends and colleagues, many of whom are her friends and the reason why she loves practicing law. mmdivani@uslegalimmigration.com

kba president’s column

KBA Day at the Kansas City Chiefs Game

Goat Yo

ga, KBA A

nnual M eeting 2 019

KBF Dinner, Annual Meeting 2019

www.ksbar.org | February 2020 17

young lawyer section

Active educational outreach is part of YLS mission: Looking ahead to Law Day 2020

by Mitch Biebighauser, YLS President

F

or as long as I have been a member of the KBA YLS, I have been proud to include active educational outreach as a part of the mission of the section. Through the High School Mock Trial competition, we provide active educational outreach to high school-age students. Through our externship program, we provide active educational outreach to law students. I am happy to announce a new partnership with The Kansas and Western Missouri Chapter of the Federal Bar Association to provide active educational outreach to middle schoolers and high schoolers in a greater regional area than ever before.

The Kansas and Western Missouri Chapter of the Federal Bar Association is heading to southwest Kansas to celebrate Law Day 2020, which recognizes the role of law in our society and aims to help people develop a deeper understanding of the legal profession. Law Day 2020 commemorates 100 years since the ratification of the 19th Amendment—which gave women the right to vote—with the theme: “Your Vote,

18

The Journal of the Kansas Bar Association

Your Voice, Our Democracy: The 19th Amendment at 100.”

For Law Day 2020, the FBA plans to coordinate a mock oral argument and a reenactment of a landmark trial with local middle and high schools in southwest Kansas on April 30 and May 1, 2020.

Their chapter serves a large geographical region, spanning western Missouri and all of Kansas. Such an expansive region necessarily includes all sorts of communities with all kinds of people, some of whom have less access to the legal system than others. Many students across Kansas may not know any lawyers or have any idea how to explore that career path. The justice system can be unfamiliar and intimidating without any frame of reference. Our hope is to introduce students to the practice of law and the justice system by illustrating some of the questions lawyers think about, some of the ways lawyers advocate for their clients, and some of the ways the law impacts their everyday lives. We want students to meet lawyers from a variety of backgrounds so they may be able

young lawyer section

to see themselves as professionals, as well—maybe some will meant to be engaging and interactive so students feel they are become lawyers one day. both learning about and participating in our justice system.

FBA members will visit Dodge City and Garden City, Kansas, for civics programming at three middle schools and one For those interested in traveling to southwest Kansas, high school. The Honorable Teresa James and The Honoror for those who live in the area able Gwynne Birzer, judges in the Federal District of Kansas, who wish to serve as a Law Day volunteer, will generously serve as judges for the event. We are seeking please sign up at this link: additional judges, practitioners and law students who are interested in volunteering to make this event a success. Volunhttps://bitly.com/fba-civics-2020 teers can sign up for one or more shifts over the course of the two days; each school visit will last approximately 2.5 hours.

Feel free to contact Jordan Carter at Volunteers will help facilitate the mock oral argument and jaecarter@gmail.com with questions. the reenactment programs and, if interested, can serve as a resource for any questions students may have about being a There will also be a dinner on the evening of April 30, 2020, lawyer. Anyone is welcome to volunteer; the only requirement for members of the local bar association to mingle and learn is enthusiasm! more about FBA. For those in the community who want to One piece of the programming is a mock oral argument develop a longer-term relationship with local students, we based on the discovery of vaping materials during the search hope to develop a mentoring program with the schools afof an underage student’s backpack at school. Based on the ter our civics event. Anyone interested in serving as a mentor Supreme Court case New Jersey v. T.L.O., this fact pattern should also reach out to Jordan Carter (Law clerk for Chief centers on the Fourth Amendment, approached from the Magistrate Judge James P. O’Hara, U.S. District Court, Dismodern and particularly relevant angle of teen vaping. The trict of Kansas). We look forward to developing this civic program includes substantive conversations related to consti- programming and celebrating Law Day 2020 with students tutional rights of students, privacy, and search and seizure. across Kansas! n Additionally, the program allows students to begin developing legal reasoning, persuasive speaking, and on-your-feet About the Author thinking skills.

Mitch Biebighauser is an Assistant Federal Defender for the District of Kansas in Wichita, The second piece of the programming, yet to be finalized, where he practices criminal defense of indigent involves a historical reenactment of famous trials. Examples individuals charged with crimes by the federal include the trial of Susan B. Anthony, who was arrested for government. He was previously in private voting in violation of state laws allowing only men to vote, and practice at Bath & Edmonds, P.A., in Overland the murder trial of Old West frontiersman Wyatt Earp, which Park, where he practiced local, state, and federal criminal defense. involves issues of deadly force by a law enforcement officer.

These reenactments involve performances of key segments of the trials, in addition to discussions focused on both histori- mitch_biebighauser@fd.org cal and modern day issues of law and justice. The events are

www.ksbar.org | February 2020 19

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The Journal of the Kansas Bar Association

2020

LEGISLATIVE PREVIEW

by Joseph N. Molina III

T

he Kansas Legislature began the 2020 Legislative Session on Monday, January 13th, and for the first time in nearly a decade, the most pressing matter is not school finance. Last year’s funding formula was upheld as constitutional by the Kansas Supreme Court after the Legislature added nearly $360 million to it. While that amount and the nature of inflation will create funding tension at some point in the future, for now, all is well for K12.

The state budget also seems to be rebounding, as evidenced by the Consensus Revenue Estimates in November, which project an additional $535 million coming into state coffers over the next 24 months. There was some concern that revenue levels would drop off significantly, making K12 funding untenable. Those tensions seem to have subsided with the favorable economic outlook.

With the state predicted to receive additional revenues above what was previously envisioned, there will be a push to cut taxes. Last session, the Legislature passed two tax bills that aligned state tax structure with that of the federal government. Those “windfall” tax cut proposals passed both times, but Gov. Laura Kelly vetoed them. The legislature did not have the numbers to override those vetoes. Tax cuts will remain an issue in 2020. At present, Gov. Kelly is hesitant to pursue a tax cut, deferring instead to stabilizing the state budget to pursue Medicaid Expansion. Kelly did empanel the Council on Tax Reform that recommended a food sales tax rebate, property tax rebate, internet sales tax and a local prop

erty tax lid. Each idea had been floated previously with some even making it into legislation (food sales tax cut), but which one gets additional attention remains to be seen. Rest assured, though, there will be legislators who seize on the tax cut issue and push for a comprehensive tax policy in 2020, knowing full well it may meet the same fate as in 2019.

Complicating things for the Kansas Judicial Branch budget was the filing of a lawsuit by several district court judges and staff asking the Kansas Supreme Court to order the legislature to increase judicial pay. That lawsuit, Fredrick v.

Kansas Legislature, Case No. 122,267 was a direct application to the Kansas Supreme Court seeking relief for a history of alleged inadequate funding that the suit claimed violated the Separation of Powers doctrine. The lawsuit stated that the lack of funding had undermined the ability of district and appellate courts in Kansas to function as a co-equal, independent branch of government. The plaintiffs sought an order determining that the Kansas Legislature under-funded the courts, in a way that would prohibit the legislature from implementing inadequate funding in the current budget, and that directed the legislature to supplement the judicial branch budget at levels included in prior requests from the courts.

This was a bombshell lawsuit, rivaled only by the school funding case which was finally concluded just last session. Its ripple effects forced newly named Chief Justice Marla Luckert to cancel her State of the Judiciary speech to the Kansas Legislature. Speaker of the House Ron Ryckman had urged www.ksbar.org | February 2020 21

2020 Legislative Preview

lawmakers against discussion with the judicial branch while the lawsuit was pending. The court had a few options: 1) deny the petition, 2) grant the relief the plaintiffs requested without hearing, 3) issue further orders asking the legislature to respond, or 4) transfer the case to the district court. Ultimately, the lawsuit was dismissed by the Court, and tensions between the legislative and judicial branches eased.

The 2020 session will also see Medicaid expansion come to the forefront. This proposal has been around for a few years, but with a Democratic Governor who supports expansion, its chances of becoming law improved. In 2019, the Kansas House passed a Medicaid Expansion bill, but it stalled in the Senate, never making it to the floor. It is widely believed that had the Medicaid expansion bill been given an up or down vote in the Senate it would have passed. Gov. Kelly has said that Medicaid expansion is her top priority.

The state budget and taxes always take up a significant number of session days but this year there are several other high-profile issues that will be debated, including: • Constitutional Amendment on Abortion • Judicial Selection Amendment • Non-economic Damages Cap • Banks vs. Credit Unions • Medicaid Expansion • Criminal Justice Reform These items will be squeezed into a tight calendar. The Session Planner released by House and Senate Leadership provided the following deadlines: • Monday, Jan. 13 - Session Begins • Wednesday, Jan. 15 - State of the State Address to the Legislature by the Governor • Thursday, Feb. 27 - House of Origin Deadline • Wednesday, March 25 - Second House of Origin Deadline • Friday, April 3 - First Adjournment • Monday, April 27 - Veto Session Begins • Wednesday, May 20 - 90th Calendar Day Those deadlines help committees prioritize legislation and allow leadership to control committee work product. However, there are a few parliamentary rules that can be employed to circumvent the deadlines, keeping proposals alive through a referral process to exempt committees. These referred bills are considered “blessed” and survive deadlines. Legislative leadership controls which bills are “blessed.” As such, it can 22

The Journal of the Kansas Bar Association

result in the resurrection of a proposal that was deemed dead.

The KBA will be gearing up to work on several technical proposals in 2020, including an effort to get legislative approval for the Uniform Family Arbitration Act, which has been in the works for over a year. The KBA will also be involved in Power of Attorney legislation, judicial selection proposals, shared parenting issues, and electronic notary updates. The KBA will also monitor the several hundred bills that carried over from 2019.

As always, the KBA will monitor bills of interest to the profession and track them on our 2020 Bill Tracking Chart found at www.ksbar.org/bill-tracking Finally, it is important to realize that 2020 is a presidential election year. In Kansas, we will vote on the President, one U.S. Senate seat, four U.S. Congressional seats and all 165 state legislators (125 House/40 Senate). While the Presidential race will garner the most attention, the U.S. Senate race in Kansas will take up a lot of ad space as well. Political heavyweights like Kris Kobach, Congressman Roger Marshall, State Sen. Barbara Bollier, Senate President Susan Wagle and Wink Hartman have all expressed an interest in the open Senate seat, but as of this writing, none has officially entered the race. Many are waiting to see if U.S. Secretary of State Mike Pompeo (former congressman from Wichita) shows interest. We will have to wait till the primary filing deadline to see.

For information on legislators, bills and committee assignments you can also visit: www.kslegislature.org. To access live updates during the session, you can follow us on twitter @KansaBarLeg. Look for our Big Item of the Day and Pic of the Day beginning on Jan 13th. n

About the Author Joseph N. Molina III serves as the director of legislative services for the Kansas Bar Association. Prior to joining the KBA, he was chief legal counsel for the Topeka Metropolitan Transit Authority and served as assistant attorney general, acting as chief of the Kansas No-Call Act. Molina earned a B.A. in political science, philosophy, and economics from Eastern Oregon University and a J.D. from Washburn University School of Law. jmolina@ksbar.org

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www.ksbar.org | February 2020 23

kansas bar foundation

Need a Trust Account?

Consider IOLTA The Interest on Lawyers Trust Accounts (IOLTA) program is an idea that originated in British, Canadian and Australian jurisdictions in the 1960s. In the U.S., IOLTA was pioneered in Florida and now exists in every state in the country. The Kansas IOLTA program was established in 1984.

Through IOLTA, attorneys and law firms place IOLTA–eligible client funds in a pooled interest bearing trust account. IOLTA funds support the following: • Legal services to the disadvantaged • Public education about the law • Administration of justice programs and other programs as approved by the court Without IOLTA, nominal or short term client funds held in non-interest bearing, pooled checking accounts benefit neither the client nor the lawyer. Under IOLTA, these same nominal or shortterm funds are still pooled into one account. However, Kansas banks may remit interest on these pooled accounts to the Kansas Bar Foundation. Each year, the IOLTA Committee selects organizations to receive IOTLA grants. In the past few years, approximately $100,000 per year has been distributed to organizations in Kansas that provide civil legal services to low-income Kansans.

It is easy to join almost 4,000 Kansas attorneys who are part of the IOLTA program • Complete the IOLTA Application. Visit www.ksbar.org/iolta to print an application.

• Take the completed and signed application to an interest bearing approved financial institution. There is a list of approved institutions on www.ksbar.org/iolta.

• Mail, fax or email a scanned copy of the completed and signed KBF IOLTA application to Kansas Bar Foundation 1200 SW Harrison St. Topeka, KS 66612-1806 Fax: (785) 234-3813 Email: info@ksbar.org (please put IOLTA Application in the subject line)

Did you know... if you practice in Kansas and Missouri, you can have IOLTA accounts that benefit both states?

If you practice in both states and you wish to participate in IOLTA in Kansas and Missouri, you can setup an IOLTA acct. in the same bank if it has branches in both states.

You will need to have two accounts and they need to be labeled for each state (one titled Kansas IOLTA and the other Missouri IOLTA). In Kansas, participating in IOLTA is still voluntary. If you wish to decline participation, you are required to send a letter or a declination form to the clerk of the appellate courts. Please send a copy of any declination to the KBF. You can find the Notice of Declination form here or below in IOLTA Resources. https://cdn. ymaws.com/www.ksbar. org/resource/resmgr/site/ kbf/grants/iolta/declination.pdf

IMPORTANT: If you choose not to participate in IOLTA in Kansas and you have Kansas clients, you still must establish a IOLTA would not be possible without the commitment of 118 Kansas banks that have agreed non-IOLTA trust account to provide IOLTA to their customers. The support of these banks and the staff that provide in Kansas. Refer to Kansas monthly or quarterly reports to the Kansas Bar Foundation is invaluable! Thank you Kansas Rules of Professional Conduct 1.15(d)(3)(ii banks! You can view a list of IOLTA banks at http://www.ksbar.org/iolta.

24

The Journal of the Kansas Bar Association

The 2020 Department for Children and Families Series:

Child Welfare System Task Force Update

by Linda Gallagher Strategic Initiatives Administrator DCF Kansas City Region

Tier Three Recommendations The Task Force adopted the following nine recommendations as important recommendations: 15. Immediate Response. The State of Kansas should provide immediate response 24/7 to hotline calls and dedicated immediate response investigators to be dispatched, when warranted; services for children and 7. Service Setting. The State of Kansas should prioritize delivering youth in natural settings, such as, but not limited to, homes, schools, and primary care 16. needs Front-End should employ highly skilled and experienced front-end child offices, in the child’s community when possible. The of theStaffing. child andDCF family should welfare staff;services are delivered; be the most important factor when determining the settings where

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17. Case Plans.

The State of Kansas should restructure the case plan process to improve Reintegration Support. The State of Kansas should provide consistent, individualized, Child Welfare System Task8. Force coordination of services evidence-based support throughout reintegration for children in need ofamong care all andstakeholders to strengthen collaboration in the case;

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FINAL REPORT

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caregivers, including, but not limited to, parents and foster parents; 18. Post-adoptive Support. The State of Kansas should ensure both federal and state adoptive families and 9. Foster Homes. The State of Kansas should investsubsidies in fosterto home recruitment and implement best practices for post-adoptive support retention by increasing funding for supplemental services; training and providing additional financial incentives that support older youth, high-needs children, and birth families, as 19. Maximizing Federal Funding. The State of Kansas should conduct an audit of potential well as modifying licensing requirements; funding streams by program area to ensure the State is maximizing federal benefit;

theresponsibilities, and contributions of stateConclusions and Recommendations agencies, nongovernmental entities, ofduties, r●t The and service providers that provide child welfare services in the State of Kansas; The Task Force adopted the following 23 recommendations, organized by priority into three tiers.

Repo k Force More information regarding the references to the report of the Mental Health Task Force may be s ● The level of access to child welfare services, including, limited to, healthtoand a mental health found inbutthenotcrosswalk attached this report as Appendix A. (Note: The numbering of T e h t m services and community based services in the State of Kansas; recommendations is for ease of reference only and does not reflect priority order.) e to yst re are S ● The increasing and contributing factors; One Recommendations islatu number of children in the child welfareTiersystem Welf g d e il L h C as ● The licensing standards for case managers working The in theTask child Force welfareadopted system;the and following five recommendations as its highest priority recommendations: Kans ● Any other topic the Child Welfare System Task Force or a working group deems 2019 1. Workforce. The State of Kansas should invest in the child welfare system workforce by

10. Analysis of Service Delivery. The State of Kansas should establish a work group or task Resources and Accountability.

The State of Kansas and DCF should provide services that force to conduct an analysis to: 1) determine what 20. it costs to adequately fund high-quality are in the interest child of children in their care by supporting a system that is accountable child welfare services; 2) by 2021, evaluate the benefits of best privatizing welfare and resourced enough provide the needed services. Considerations should include, services; and 3) determine the best public/private collaboration to well deliver childtowelfare not be and limited to, theevaluations awarding of funds based upon qualifications and not financial services. DCF shall determine appropriate outcome but measures periodic factors; set improving workforce morale and tenure; and providing technology to improve shall be conducted to ensure contractors are achieving outcomes and provide efficiencies; opportunities for ongoing collaboration and review. Summary reports should be provided

necessary or appropriate. is

to the Legislature semi-annually; 21. Serious Injury Review. The State of Kansas, in accordance with federal and state confidentialityThe laws, should formalize a Serious Injury Review Team to establish and 11. Safety Net, Early Childhood Programs, and Early Intervention.

State of Kansas conduct a review process both internally and externally for an immediate and necessary should fully fund, strengthen, and expand safety net and early childhood programs response when a child dies or suffers serious bodily injury after having previous contacts through public services (DCF, mental health, substance abuse, and education) and with DCF Protection and Prevention Services concerning prior abuse and neglect; increasing funding for recruitment, retention, and support to effectively attract and retain community-based partner programs, and reduce barriers for families needing to access high-quality staff; concrete supports. The State of Kansas should ensure availability and adequate access to 22.

Court Appointed Special Advocates. early childhood behavioral health services statewide. The Task Force recommends The Legislature shall fund Court Appointed Special (CASAs) 1.2 to ensure the availability of CASA volunteers in all jurisdictions, 2. Data Infrastructure. The State of Kansas should create a single, cross-system, considerationweb-based, of related Mental Health Task ForceAdvocates recommendations (Medicaid without current funding CASAs receive from the State of Kansas; and integrated case management and data reporting system that can Expansion be used byModels), the Kansas 1.3 (Housing), 3.1 (Regional Model), and disrupting 6.4 (Earlythe Intervention);

Dav Erin ative resent ]; Rep Ty , and Kelly ra Department for Children and Families (DCF) and all relevant agencies and stakeholders , Lau ley Physical Access. The Legislature should fund increased physical access between children Vicki to efficiently and effectively share information (e.g., education, dental, medical, /2018] od Ous 12. Information Sharing.

The State of Kansas should 23. establish a multi-disciplinary approach Steve onnator in need of care and their families, as well as ensure that families are supported in es (n r ative il 7/18 and Jarr behavioral); ili N: Se nt and share information across and among stakeholders, irrespective of state borders, in nt m se SO [u re er accessing services as required by the case plan. d Fa ent fo RPER accordance with federal and state laws; ollier Gallagh : Rep ren an Departm rvices CHAI SON ra B da Child 3. Families First Act. The State of Kansas should fund and institute the federal Families ), RPER Barba ives Lin y for es (PPS munity Se court Additional Considerations: The Legislature should consider restoring Temporary Assistance for rs CHAI ar at to First Prevention Services Act in Kansas and follow the federal guidelines; ] E et 13.

Non-Abuse Neglect.

The State of Kansas should provide differential responses for nt VIC 1/9/2018 Secr n Servic cis Com , district Hon. Needy Families (TANF) eligibility to its pre-2011 status. : Senad Represe newborns and refer them to evidence-based services. The Task Force recommends mel, ill tio BERS [from -Hum d Protec Saint Frananiel Cah 4/2018]; ickey MEM /2018]; an consideration related Mental Health Task Force recommendations 6.1 (Expand Service 4. Access to Care. The State of Kansas should require access to high-quality and of consistent VE Meier an M il 4/ .D sh, 7/26 LATI Options), 4.2through (Regional medical and behavioral health care for Medicaid-eligible high-risk youth theModel), and 6.4 (Early Intervention); and : GinaPrevention achel Mar ing); Hon stice) [unt4/4/2018]; e Chief LEGIS rson [from BERS Medicaid state plan or other appropriate sources of funding; and Children and Families to establish a Child Welfare BACKGROUND MEM irector of oting); R s (non-vot rt (Chief Juice [from inted by th Justice; Maste System Task Force (Task Force) to study the child 14. Relative Search. The State of Kansas should ensure that diligent search for relatives for TIVE -v sa ef D ou st po LA on an hi C na Ju EGIS welfare system in the State of Kansas. Previously, Sere eme Long, CF) (n es, ap placement a child removed from theHouse home.Sub. DCFfor the C VC K hief 5. Code for Care of Children. The Judicial Council should reviewpossible the Code for Carebegins of immediately whenThe 2017isLegislature passed NON-L ; Patricia milies (D henson, K of the Supr by the Cial Advocat inted by al Council; ily law the 2015 and 2016 Special Committees on Foster shoulddefinition establishof benchmarks for relative shall monitor relatedfor Children (CINC Code), especially with regard to: a) the way DCF’s “non SB identification 126 (SB 126),and directing the Secretary m g) po e d Care Adequacy, the House Committee on Children outcomes, such as number of relatives identified within the first 30 days, number of votin n and Fa dsey Step ef Justic appointe ed Spec ber, ap the Judici arnell, fa inted by abuse neglect” relates to cases under the CINC Code, and b) modifications to meet the re nt in em hi children in relative placements and length of time for the child to reach that placement, child’s ongoing best interests for permanency.

Child oting); L by the C t judge, rt Appoi board m inted by Ashlyn Y ker, appo Sandra ur d or e; po and number of relatives contacted. DCF should regularly report on theseDepartment benchmarks and 0-3 Kansas Legislative Research 2018 Child Welfare System Task Force (non-v appointe strict co ansas Couen review tive, ap Council; social w esentativ nty and ta outcomes to the Legislature. di K d judge, Larson, director, rner, citiz represen e Judicial license Board repr ansas Cou pointed Tier Two Recommendations d, n ap th K Tu t, Jeffry ds, state hnson- ganizatio ted by ail Cozad Review by the artmen Jo th in or The Task Force adopted the following nine recommendations as high priority recommendations: Edware; Alicia rent em, appo ouncil; G hild Dea pointed lice Dep ap Po C C er pa ic lit , st al e, st lle rn fo ci Ju ad Offic Tye, arysvi Melho e Judi dian 6. Foster Care Re-entry and Transitional Services. The State of Kansas should provide Mary ns, guar ted by th atherine Attorney’s Ohlde, M K ki young adults age 18-21 with the option to seamlesslyKansas re-enter the childResearch welfare system, Legislative Department 0-2 2018 Child Welfare System Task Force trict Haw ey, appoin ncil; Dr. David ish a and ensure continuity in medical, behavioral health and support services for youth who Sgt. y Dis establ Task attorn dicial Cou k Count tion; and of Police. have exited the custody of DCF; es to e ic Famili directs th by the the Ju r, Sedgw s Associa of Chiefs d an ll re n bi Lesso t Attorneyssociation hildre em. The ild welfa ervation, C r ic A tr ch fo es st sas Dis ary 0-1 2018 Child Welfare System Task Force re sy ation of family pr and eachKansas Legislative Research Department e Kan Secret tr welfa e , by th s the the child l adminis services sk Forc direct y e Ta tive nera GE (2017) rce to stud y the ge F), protec onally, th 126 CHAR iti Fo stud es (DC DCF t. Add for SB em Task oups to with ili s en m b. ct em Fa gr Su ac d ntra Syst January 2019 House Welfare e working ldren an anency pl g topics: that co hi in entity Child to conven ent for C and perm e follow each th , over Force s Departm ster care to study DCF services; n by n Kansa ation, fo e directed rvisio d adoptio gr ar pe te p su in ou re d an ng gr care, ght an worki oversi ion, foster at vel of he le e reintegr ● T id to prov idt Schm

A

il d [unt Alfor

18 1/9/20

fter 16 months of delving deep into problems within the Kansas child welfare system, the Child Welfare System Task Force issued a report in December 2018 that contained 23 broad recommendations for improving various aspects of the system through changes to law, rules and regulations and system processes.

The Kansas Legislature authorized formation of the task force by passing SB 126 in 2017. Among the issues the task force was charged with studying were: • The level of oversight and supervision by the Kansas Department for Children and Families (DCF) over each entity that contracts with DCF to provide reintegration, foster care and adoption services; • The duties, responsibilities, and contributions of state agencies, nongovernmental entities and service providers that provide child welfare services in Kansas; • The level of access to child welfare services, including health and mental health services and community-based services; and

• The increasing number of children in the child welfare system and contributing factors.

The task force convened three working groups to study the following topics: Working Group A—General Administration of Child Welfare and Foster Care; Working Group B — Protective Services and Family Preservation; and Working Group C—Reintegration and Permanency Placement.

The 23 recommendations each included a range of one to 11 supporting strategies identified by the three working groups for implementing the recommendations. The task force’s work inspired the framework for DCF’s efforts in 2019 and beyond. DCF’s strategies to achieve better outcomes create the foundation for strong resiliency and prevention networks, timely exits to permanency and health care and well-being coordination. The task force sunsetted on July 1, 2019.

Key recommendations of the task force generally fall into five categories: workforce, prevention and service setting, access to care and infrastructure, information sharing and early childhood. Following are key recommendation accomplishments as of December 2019 and planned future actions: www.ksbar.org | February 2020 25

dcf series: child welfare system task force update

Workforce • Key recommendation accomplishments:

m DCF has 42 new positions in Child Protective Services (CPS) funded by the Kansas Legislature along with 80 paid student practicum spots m Positive impact with employee retention efforts such

as telework options, paid educational leave and employee engagement through local retention committees m Front line practitioner use of the Child Protector app

to recognize mechanisms of child abuse injury information developed by doctors at Children’s Mercy Hospital • Future action: m Cognitive Integration Skills with youth;

m Goal of 1:5 ratio of supervisors to front-line CPS workers (requires legislative action); and m Flexible work schedules for DCF staff.

Prevention and Service Setting • Key recommendation accomplishments:

m $13 Million in Prevention Grants awarded across 17 community providers in Kansas to support families and prevent the need for entering foster care. m New practice approaches initiated to increase family

and youth engagement in prevention and case planning such as Signs of Safety, Structured Decision Making, Team Decision Making, Ice Breakers, Family Finding and Special Response Team, for youth who are absent or on the run from their living arrangement. m Increased daily payment rate and array for relative

and licensed foster caregivers effective October 1, 2019. m New Qualified Residential Treatment Program

(QRTP) for youth placed in residential settings, with an assessment and Court’s decision about QRTP placement appropriateness within 60 days the placement start date. m New family preservation grants began Jan. 1 with

three grantees. Family preservation is voluntary services provided to families with a child at risk of entering foster care. The new grants include both short term case management services and intensive in-home services; m New foster care grants began Oct. 1 with four grant ees providing child welfare case management services in the four regions.

• Future action: m Decision on requested juvenile justice reform rein vestment funds; m Evidence-based practice in foster care with the goal

of more timely permanency; and 26

The Journal of the Kansas Bar Association

m

Increase access to safety net programs.

Access to care • Key recommendation accomplishments:

m RFP issued for Juvenile Crisis Intervention Centers to provide short-term care; m DCF Medicaid liaison;

m Cross-agency workgroups are addressing issues involving access to care. Managed care organizations are included in these; m American Academy of Pediatrics has proposed cre ation of a universal medical history form; m Qualified Residential Treatment Program (QRTP)

launched Oct. 1 as part of Family First initiative.

QRTPs are group homes with additional services and accreditation; and m Some new Psychiatric Residential Treatment Facility

(PRTF) beds have come online to care for more children and youth with mental health and behavioral needs.

• Future action: m Medicaid expansion is a top issue in the 2020 legisla tive session. Task force Working Group B recommended funding and expanding KanCare as a supporting strategy for its recommendation on Safety Net, Early Childhood Programs and Early Intervention; m Amplify referrals to Mental Health in Schools pro gram; m Implement community service coordinators with

managed care organizations; and m Establish Juvenile Crisis Intervention Centers.

Infrastructure and Information Sharing • Key recommendation accomplishments:

m Comprehensive Child Welfare Information System design (CCWIS); m New CareMatch foster care placement matching

system was launched Oct. 1. It allows child welfare case management providers and child placement agencies to send referrals, make placements and manage bed availability and increases the likelihood of children being placed in foster homes closer to their home communities.

• Future action: m Four-year development plan for CCWIS (requires

legislative action); and m Sharing information with Wichita law enforcement.

dcf series: child welfare system task force update

Early Childhood • Key recommendation accomplishments:

m Expanding access to child care subsidies; and

m

Early childhood care and education statewide needs assessment effort completed through a federal grant administered by the Kansas Children’s Cabinet and Trust Fund in partnership with DCF, the Kansas Department of Education and the Kansas Department for Health and Environment. A strategic plan for improving early childhood care and education in Kansas is being developed. Forty-six Community Action Lab grants were awarded to local communities for short-term early childhood projects.

• Future action: m Moving Child Care Quality Recognition Improve ment System from pilot to statewide rollout in Spring 2020.

DCF and other state agencies are committed to this effort, as evidenced by the extensive progress that has been made in the past year in accomplishing recommendations and supporting strategies of the task force. As DCF Secretary Laura Howard has said, this is a marathon. The child welfare system did not get broken overnight and it will not be fixed overnight.

Previously, the system was focused on intervention, not prevention. DCF is focusing on putting into place changes that are sustainable. We will not lose sight of the ultimate goals: to keep Kansas children safe and strengthen Kansas families.

The Report of the Child Welfare System Task Force to the 2019 Kansas Legislature can be found at this link: http://www. kslegresearch.org/KLRD-web/Publications/CommitteeReports/20 18CommitteeReports/child_welfare_sys_tf-cr.pdf n

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About the Author Linda Gallagher served in the Kansas House of Representatives from 2015-18, representing District 23 (portions of Shawnee, Lenexa and Overland Park). She served on the Children & Seniors (vice chair) and Social Services Budget committees and on the Child Welfare System Task Force and was vice chair of its working group on Reintegration and Permanency Placement. Since April 2019, Gallagher has been strategic services administrator in the Kansas City Region of the Kansas Department for Children and Families.

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law practice management tips and tricks

The Consumer Electronics Show

by Larry Zimmerman

The massive, annual Consumer Electronics Show (CES) in Las Vegas is ongoing as this goes to print and already there have been a variety of interesting announcements this year.

Not all products announced at CES actually make it to market but quite a few can be expected by the end of the year.

Dell and Lenovo Folding Tablets – Both laptop giants are betting on dual screen, folding tablets for 2020. Dell’s Ori and Lenovo’s X1 Fold open to a 13.4” OLED screen surface when fully unfolded. The devices look and function like a tablet or offer a virtual keyboard on one half when opened partway like a laptop. Dell’s Duet is twice the size offering up to 26” of screen and a detachable keyboard providing an unprecedented amount of screen space in a such small form factor.

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Lenovo ThinkBook Plus – The ThinkBook Plus is a truly unique offering with a paperwhite e-ink display on the outside cover of the 13” laptop. The e-ink screen can display calendar, text, and other notifications or act as a notetaking platform. It consumes little power, looks clean and crisp like paper, and nicely supplements the full HD display inside. The ThinkBook Plus will start at $1,200 this year.

Samsung Sero TV – Samsung has recognized how ubiquitous mobile phones are for video and image recording and sharing and the majority of mobile phone imagery is vertically oriented. The Sero TV accommodates this by rotating from a horizontal to a vertical orientation to make full screen presentation more natural – no large black or blurred frames.

It may seem like a simple trick but it allows mobile phone

law practice management tips and tricks

imagery to fully fill a large screen and makes for more compelling display. Anticipated to arrive this year near the $1,000 price point.

Hachi Infinite Touchscreen Projector- The short-throw projector from Hachi can display a bright, crisp image up to 26” on any surface and the image will respond as a touchscreen with 10 points of touch. The portable three-pound device includes an onboard battery, microphone for voice command via Amazon Alexa, and dual 5W speakers. It is Android-powered and Bluetooth-enabled to allow wireless screen casting. Shipping is anticipated in March at around $1,000.

Mophie PowerStation Go – Mophie is well-known and respected for its portable power banks and the PowerStation Go adds a new trick – it can jump start your car. In addition to dual USB-A charge ports, the new model adds a wireless charging pad and an attachment that can jumpstart any car or SUV. The PowerStation Go will retail for $160 and should arrive on shelves in February.

IVEA Time-C Smartwatch – Most smartwatch activity trackers only monitor the user’s stats like heart rate and activity levels. The analogue face, steel band Time-C monitors environmental factors as well. It can measure sun/UV exposure, pollution and particulate levels, humidity, temperature, ambient noise, and ambient lighting. This full-spectrum monitoring station on your wrist will ultimately help wearers be more alert to environmental factors on health and well-being.

Pricing starts at $500.

Neutrogena Skin360 – The Skin360 app uses your phone’s front-facing camera to take a 180-selfie and then process and analyze over 100,000 pixels to measure skin health. The algorithm evaluates features like smoothness, wrinkles, fine lines, dark spots, and dark circles to watch for problem areas and to create a custom skin care maintenance regime (using Neutrogena products, of course). Available now for Android and iOS. Opte Beauty Wand – Throw away the old-fashioned foundation and concealer because there is a new technology for concealing age spots, sun spots, and pigmentation issues.

Sweep the Beauty Wand over your face and it scans the surface of your skin, analyzes spots, and then uses 120 nozzles to spray pigment and moisturizer like an inkjet printer. Demonstrations (in a controlled environment) make it look fast, simple, and effective with no mess. The Beauty Wand should ship this year and starts at $600.

Motion Pillow by TenMinds – Snoring is a problem for the snorer and anyone else within earshot but the Motion Pillow aims to stop it. The memory foam pillow houses multiple air chambers that can inflate and deflate on command.

That command comes when microphones in the pillow detect snoring and the pumps activate to shift the snorer’s head on

the pillow until silence returns. It aims to provide a gentle nudge to reposition rather than the harsh slap expected from an exhausted bed mate. The newest version will ship this year for $420.

Cosmo Connected Helmet – The Cosmo with glasses provides high-tech safety options for motorcyclists. The glasses offer a full heads-up display of the vehicle’s instrumentation and offer an array of sensors monitoring the environment for potential dangers around the cyclist and signaling on-coming risks. The Bluetooth-connected glasses and helmet cannot execute emergency maneuvers but they can call 911 and emergency contacts for help, providing GPS coordinates if you are down. The helmet and glasses will retail for $300.

Google Assistant Web Page Reader – This enhancement to the Google Assistant will allow users to say, “Hey Google, read this page” and it will read the text of a webpage in a natural-sounding voice. AI is improving such that it will only read relevant text and ignore navigation buttons, ads, and other clutter that infests websites. The Web Page Reader will be a free enhancement to Google Assistant later this year. n

About the Author Larry N. Zimmerman is a partner at Zimmerman & Zimmerman P.A. in Topeka and former adjunct professor, teaching law and technology at Washburn University School of Law. He is one of the founding members of the KBA Law Practice Management Committee.

kslpm@larryzimmerman.com

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www.ksbar.org | February 2020 29

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The Journal of the Kansas Bar Association

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n i t s e

P n i g

Why Family Harmony is a Frequent Casualty of Most Estate Plans

by Tim O’Sullivan

e i P

s e c PART I

Happy families are all alike; every unhappy family is unhappy in its own way.

Leo Tolstoy, Anna Karenina

Chapter 1, first line The post mortem squabblings and contests on mental condition…have made a will the least secure of all human dealings.

Lloyd v. Wayne Circuit Judge

23 N.S. 28, 30 (Mich. 1885) You never know people until you have shared an inheritance with them.

Tom Campbell, co-founder,

Family Business Institute Introduction

I

n its broader context, estate planning extends beyond the confines of the investment, management and disposition of an individual’s assets during a disability and following death. It also includes ensuring that intangible family values, not the least of which is family harmony, are protected in the estate planning process. The need for clarity, accuracy and comprehensiveness in estate planning documents in addressing the many technical tax, asset protection, governmental resource, and other goals involving the disposition and management of a client’s property following a disability or death have been a long-standing cynosure of an estate planning practice. However, their achievement bears only a tangential relationship to the achievement of family harmony goals.

When asked, most clients readily conclude that preserving family harmony in the estate planning and administration process is a very important goal. It is not all that atypical for clients to go as far to say that they would rather give their property to a charity than have their children fight over their estates. Given the prominence that parents normally would place on this estate planning goal, it would seem to ineluctably follow that addressing family harmony issues would be commonplace in the estate planning process. Unfortunately, that has not been the case, underscored—and compounded by—the virtual absence of such discussion in estate planning textbooks, legal seminars and articles. It is further attested to by the relative paucity of provisions in wills and revocable trusts, as well as in counseling rendered by estate planning attorneys, that would serve to undergird its preservation.

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However, this goal is not likely to be raised by clients, who, as one might expect, are typically uninformed of the impact estate planning decisions can have on family harmony. Unlike other professional fields such as medicine and financial planning, with respect to which most individuals have become quite aware from their environment, the media and their education of their complexities and the corresponding need for professional advice when making health decisions, clients seeking estate planning advice, unaware of its nuances and complexities, tend to be predisposed to simplistic, often errant, preconceptions. It is thus left to their legal counsel to importune the consideration of this aspect, among other, estate planning considerations.

The author submits that the general failure of estate planning attorneys to appropriately address this issue, including by the author for a substantial portion of his practice, has been a major factor in the very high incidence of family disharmonies during the estate planning process, following a client’s disability, and in the post-death administration of a client’s estate. For estate planners, such high incidence has rendered the term “nuclear family” a double entendre.

The main factors for such inattention appear to be: an absence of professional sensitivity to the importance of this issue; the mistaken view that this subject matter is more appropriate for family counselors and advisors; an enduring practice inertia centering on the technical aspects of estate planning; and a lack of expertise on strategies, and accompanying form provisions, that have the capability to adroitly address this issue.

Family harmony is not the only resultant casualty. If family harmony is lost following the disability or death of a family member, the goal of reducing costs in the administration of an estate is likewise put at a high risk of failure. Although such failure concomitantly increases the need for attendant legal services, the author in no way believes this is a significant factor in such failure. Without question, estate planning attorneys would be expected to pursue what is in their clients’ best interests, devoid of any consideration of their own economic interests.

Although by far the most frequent, family relationships among adult siblings of a parent are not the only relationships vulnerable to family disharmony in the estate planning process. Also vulnerable are relationships between a parent and adult child, a parent and a child’s spouse, adult siblings and step-siblings, and between stepchildren and a stepparent.

The impact family disharmony has on estate planning and administration issues is quite familiar to most estate planning attorneys, although the impact their estate planning practices have—or fail to have—on such adverse consequences would be expected to have a much lesser familiarity, the only logical reason extant such issue is not already being duly addressed.

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The discussion that follows addresses estate planning issues adversely impacting family harmony and presents salutary strategies the author has found efficacious in enhancing its preservation. Such strategies are practical in nature and the legal principles involved for the most part well known to estate planners, for which few cites are needed. It will be assumed in such discussion that parents have more than one adult child, for there obviously would be little to no risk of family disharmony in a multi-child family currently having only minor children or a single-child family relating to a parent’s estate plan, save that in such latter circumstance which may result, as discussed infra, from a parent’s disclosure of the estate plan. For ease of reference, any references herein to a “testamentary instrument” or “instrument” of a parent are intended to include both wills and revocable trusts; to the estate and its administration to both probate estates and revocable trust estates; and to the fiduciary or financial fiduciary of the estate to a trustee of a revocable trust estate or executor or personal representative of a probate estate, unless the context should indicate otherwise.

Choosing the Appropriate Fiduciary He who represents himself has a fool for a client.

Abraham Lincoln Death is not the end. There remains the squabbling over the estate.

Ambrose Bierce The estate planning decision likely to have the greatest impact on family harmony is the choice of financial fiduciary to serve during a client’s disability (agent under a financial power of attorney and trustee of a revocable trust) and following death (the trustee of a revocable trust and executor or personal representative of a probate estate). Although clients have an understandable propensity to prefer an adult child serving in such capacity (following their death if unmarried or normally after the death of a surviving spouse excepting second marriages), the all too frequent acquiescence of estate planning attorneys in this preference, sans a meaningful discussion with clients such decision’s potential adverse impact on family harmony, presents a very high risk of its loss in the plan’s implementation.

Estate planning clients are no more prepared to make an informed decision concerning the appropriate fiduciary of their estates in the absence of objective professional advice than are individuals in determining medical choices without the advice of a physician. The same is also generally true regarding individuals lacking knowledge in investment matters making investment decisions bereft of the advice of knowledgeable experienced investment advisors.

Based on practice experience, professional inquiries, and the polling by the author of estate planning attorneys and certified public accountants at professional seminars, the author

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has determined that there is an approximate one-third to forty percent risk of significant family discord in the post-death administration of an estate attributable to a child or children serving as a financial fiduciary of a parent’s estate when a parent is survived by more than one adult child. Irrespective of the exact percentage, there is little question but that such risk is quite high. As one might expect, there appears to be a direct correlation between the number of children and number of in-laws and the degree of such risk. Interestingly, however, the size of the estate appears to be a lesser factor. As estate planning attorneys well know, a high percentage of such family disharmony extends well beyond the closing of the estate, often for the remainder of affected children’s lifetimes.

The risk of family disharmony increases to some extent should a child additionally serve as financial fiduciary for a disabled parent either as agent under a financial power of attorney or as trustee under a revocable trust. It increases to an even greater extent should a child serve as fiduciary not only of a parent’s estate, but also of a trust created under the instrument benefitting another child or a stepparent. This latter circumstance creates a very high risk of disharmony extending beyond just the normal conflicts and tensions occurring between the child named as fiduciary and such child’s siblings, but also those between such child, the stepparent and stepparent’s children, and between such child and siblings with respect to decisions regarding the stepparent’s beneficial interest in the trust should such child’s siblings have a remainder interest in the trust following the death of the stepparent.

A misconception among children is that serving as a financial fiduciary is some sort of “plum” or parental honor bestowed upon them. It is also often viewed by a child as their final parental “grade card” of filial merit. This perspective is a major cause of disgruntlement among siblings not chosen.

However, the appointed child usually comes to a quick realization such appointment presents a significant burden with little offsetting benefit. In addition to incurring any resultant family disharmony, such child typically has to take time away

from work and family to undertake a time-consuming task for which the child is normally ill-prepared, inexperienced and for which the child may not be in receipt of even a modicum of sibling appreciation.

The reasons for the high frequency of such adverse family harmony consequences are myriad. First, beyond obvious sibling jealousy, resentment, past conflicts, and avarice, parents are the family’s “emotional glue” which becomes abruptly absent following their passing. Upon the death of the surviving parent, grief and “orphan syndrome” often combine to create a highly charged emotional cauldron adversely impacting the harmonious administration and distribution of the parent’s estate. It is not all that unusual for the mindset of adult children in this environment to revert to a level rivaling prior prepubescent sibling rivalry. In-law involvement typically only serves to increase family tensions.

If parents believe such tensions can be avoided by appointing more than one child or all children as co-fiduciaries, they are likely to be mistaken. For in addition to posing administrative hurdles depending upon the number of children appointed, this strategy typically serves to create other friction points, as children frequently are not of like mind on the various issues impacting the administration of an estate. In that context, most any issue can become material, including those which in other contexts might be considered quite inconsequential. Further, children serving as co-fiduciaries who ultimately end up having to do a disproportionate amount of the estate administration, without compensation or appreciation from their siblings serving in the same capacity, can become resentful. Should an odd number of children be appointed, children holding a minority position can quickly accrue a high level of resentment. Conversely, having an even number of children as co-fiduciaries may result in a contentious deadlock.

Compounding the problem, a child serving as financial fiduciary not infrequently assumes an arrogant “I’m in charge” posture, thereby disaffecting siblings. The author has learned that a child most desirous of serving as a fiduciary may be the child especially prone to possessing a divisive imperious attitude if named as financial fiduciary of a parent’s estate.

Frequently, communication problems with siblings, both as to content and frequency, can occur regarding the administration of a parent’s assets, be they real or perceived. Other children feeling there is an information vacuum tend to presume the worst, often garnering a suspicious “I wonder what my [brother or sister] is doing” perspective.

Parents should also be made mindful that a child serving as financial fiduciary can have a significant financial conflict of interest. Many decisions a child makes, or has the discretion to make, as financial fiduciary in the administration and distribution of the estate, may be exercised at the edge of such

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discretion to such child’s benefit. Even when such decisions are impartially made, siblings can have a far different subjective perspective.

Compounding family disharmony opportunities is the complexity of a financial fiduciary’s tasks. Mistakes can be made in investment, management and tax decisions, especially if family fiduciaries make decisions without benefit of competent professional advice. Even when making sound fiduciary decisions, other family members are often prone to “second guess” their decisions. Compared with experienced third parties, children serving as fiduciaries tend to be much less diligent and compliant with the provisions of the testamentary instrument and statutory requirements governing the management of an estate, beyond simply being a reflection of their lack of knowledge and appreciation of the subject matter.

Rather than viewing their fiduciary role from an objective perspective, children often feel that other family members should simply trust them, even sometimes to the extent of not expecting an inventory or accounting. A request by another family member for an accounting or other information is often viewed by a family fiduciary as questioning their veracity.

Administrative mistakes, both real and perceived, can engender ill will and heighten the level of disagreements, all too frequently resulting in substantial family discontent. Other children also commonly disagree on the family fiduciary’s management determinations on a plethora of administrative matters for which they are devoid of knowledge as to their legal requirements. Many administrative tasks are rife for disagreement simply because they rest upon the personal judgment of the fiduciary applied to the facts at hand.

As estate planning attorneys well know, such matters include: (1) the distribution of tangible personal items (jewelry, furniture, pictures, clothing, family heirlooms, etc.) among children for which there was no specific disposition in the testamentary instruments or documents of the decedent; (2) the distribution of assets in kind in satisfaction of proportionate shares of the estate based on their fair market value; (3) the timeliness in completing the administration of the estate; (4) whether to make interim distributions to family members prior to the termination of the estate; (5) whether a sibling serving as a fiduciary sufficiently consulted with them on administrative matters, even if not legally required to do so; (6) whether accountings of administration expenses and receipts were timely furnished and accurate, a frequent problem due to children often failing to keep adequate financial 36

The Journal of the Kansas Bar Association

records; (7) decisions regarding whether estate property should be sold, when it is to be sold and at what price during the postdeath estate administration process, often with little concern, awareness or appreciation by other children of their sibling’s fiduciary responsibilities in that regard; (8) whether the child fiduciary properly sought or chose appropriate legal and tax counsel for the estate; (9) whether the assets of the estate were accurately reported by the fiduciary on an inventory; (10) whether claims against the estate were properly settled; (11) whether claims on behalf of the decedent were settled properly; (12) tax elections during the administration of an estate having a disparate impact upon beneficiaries and whether a corresponding equitable adjustment which should be made in favor of adversely affected beneficiaries; (13) whether a child serving as a fiduciary should take an administrative fee and its reasonableness; (14) whether any transfers by the decedent to a family member during the parent’s lifetime were appropriately considered as loans or gifts in determining the family member’s share of the estate; (15) whether a child who cared for a parent in a non-fiduciary capacity during the parent’s lifetime has a legal or equitable basis for seeking compensation for such services from the parent’s estate; (16) whether property passing outside the estate to a child through joint tenancy or a beneficiary designation should be taken into account in determining a child’s share of the estate; and (17) the appropriate time for the closing of the estate. Ameliorative strategies regarding the first and last four above matters are addressed below.

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Of particular note, when a child serves as financial fiduciary, siblings are often of the view that their sibling should not be entitled to a fee, notwithstanding being legally entitled thereto in the same manner as a third party, even if the instrument specifically provides for compensation for the family fiduciary. This position often is the result of other family members being of the opinion that the administration of the estate by a sibling is strictly a “family matter.” This view typically will be resented by the child serving as financial fiduciary as indicating a lack of appreciation for their efforts and services as fiduciary. Even if family members are accepting of a fiduciary fee being taken by a sibling, they frequently take objection to the amount, particularly if their sibling has not assiduously kept records of time expended and matters addressed as a fiduciary, a quite common situation.

The foregoing problem areas abound even in circumstances where the family fiduciary is diligently trying to exercise fiduciary responsibilities in an objective, even-handed manner.

When such is not the case, other serious consequences can ensue. Less than impartial child fiduciaries are tempted to manipulate the decision-making process for their own economic gain. They also may go to the extreme of ignoring the dictates of the testamentary instrument in favor of exercising their own judgment as to what their parent “really intended.”

Although certainly isolated occurrences, most estate planners having any significant tenure have experienced incidences of the purloining of estate property or embezzlement of estate funds by a child serving as a fiduciary Such problems are compounded in a “blended family” situation where a parent is leaving property to both children and stepchildren. This is one of the most potentially divisive and contentious of all family estate planning situations. As opposed to naming a child as sole fiduciary, which can be quite incendiary, the all too frequent unwise strategy of balancing competing family interests by naming an equal number of children and stepchildren as co-fiduciaries is even less worthy of consideration. It has the inverse effect of engendering frequent and costly disagreements between family factions on both sides and among family members on each side, all too frequently resulting in a costly stalemate. In discussions with clients, the author has likened this ill-advised strategy to tying the tails of two cats together.

Beyond the negative family disharmony consequence all too frequently occasioned by having a child serve as financial fiduciary, there is also potential personal liability resulting from errors in the management of the parent’s estate.

This can be both emotionally and financially devastating to a family fiduciary. It often occurs due to a family fiduciary “winging it” regarding the administration of the estate without seeking legal advice, from oversimplifying the process, sheer ignorance, or simply to avoid incurring accounting or legal professional fees. Any resultant emotional damage to

family harmony can be exacerbated when the testamentary instrument has waived fiduciary liability for actions by individual fiduciaries which are merely negligent rather than intentionally errant. Although such provisions are designed to not penalize a child for unintentional mistakes, such exoneration does little to assuage, and may even worsen the rancor of other family members, who are thereby left with no means of redress for damages incurred by a sibling’s mismanagement of their parent’s estate.

Due to the foregoing formidable risks to family harmony posed by a child serving as financial fiduciary of a parent’s estate, there is rarely a family situation in which the risk to family harmony in having a child serve as financial fiduciary of a parent’s estate is insignificant, no matter how harmonious the family during the parent’s lifetime. Because such situation does not present itself during a parent’s lifetime and the factors affecting family harmony are both complex and multitudinous, it is simply not feasible for parents to be able to properly evaluate and predict this risk in their own family with any reasonable degree of certitude.

The confluence of the foregoing factors can result in naming a family member as a financial fiduciary being the ultimate “acid test” of family harmony, taxing it to its limit. Any resultant damage will obviously tend to be much greater in more harmonious families, for such families have “more to lose” by such an occurrence. In situations where significant family disharmony is already present, naming a family member as fiduciary carries with it a much higher risk of discontent and attendant administrative costs.

Interjected into such breech is a parental proclivity to name a child as financial fiduciary of their estate. At first blush, parents quite understandably tend to view the administration of an estate, as do their children, as simply a “family matter,” thus, unless there is an estranged relationship with their children or they are otherwise held in disfavor, instinctively concluding a child who “knows the family” is best suited to carry out their intent. However, simply put, the administration of a parent’s estate is not a “family matter.” It is a legal and financial matter which only happens to involve the administration and distribution of parental assets, the objective administration of which is not furthered, but in fact normally impeded, by the impact of family dynamics. Family dynamics should play absolutely no part, legally or otherwise, in the interpretation to be given an estate planning document or the proper administration of an estate. The term family dynamics refers to the way family members interact with each other, with its inherent emotional aspects, and thus its impact is independent of any objective aspects. When family dynamics impact the administration of a parent’s estate due to a child serving as financial fiduciary, any semblance of objectivity by family members can quickly become evanescent.

Even if such family harmony risk was objectively deter(Continued on Page 40)

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(Continued from Page 37)

minable in the abstract, parents would not be expected to be objective in determining this risk in their own family.

The understandable natural tendency is for parents to have a rather Panglossian view that their children possess the better elements of human nature, presenting little to no risk of failing irrespective of the circumstances. Consequently, prior to having a full discussion with counsel of this issue, parents are likely to dismissively conclude that family disharmony resulting from the appointment of their child as financial fiduciary simply “won’t happen in my family.”

Beyond the family disharmony risk, naming a child as financial fiduciary is accompanied by an administrative burden. A child must devote significant attention away from their family and personal or work schedule to attend to estate matters with which the child typically has no prior experience. Such burden is increased if a child is geographically challenged with respect to administrative duties requiring such child’s physical presence, such as inventorying and distributing tangible personal property, overseeing estate sales and meetings with other family members and professional advisors.

Naming a child as a financial fiduciary of a deceased parent’s estate is analogous to an owner of a highly technical and complex business employing a manager having no prior experience or expertise in the business, potential financial conflicts of interest in such capacity, and who is at high risk of incurring divisive personality conflicts with employees. Obviously, such hiring would normally be ill-advised, posing a significant economic and employee morale risk to the business.

A child having inherent financial conflicts of interest who is at high risk of being resented by, and having disagreements with, siblings, and who has no prior experience as financial fiduciary of a parent’s estate, similarly puts the estate at a substantial economic and family harmony risk.

Just as parents cannot be truly objective as to the risks in naming a child or children as fiduciary of their estates, a child serving as fiduciary cannot be objective as fiduciary vis-a-vis such child’s relationship with siblings in the discharge of such child’s fiduciary duties. Siblings in turn similarly cannot be objective about their sibling’s exercise of such sibling’s fiduciary duties. Even attorneys, notwithstanding their legal training to be objective, as Abraham Lincoln aptly noted, have a “fool for a client” should they choose to represent themselves.

Emotions, family dynamics, conflicts of interest and inherent partiality severely impair the objectivity of all siblings involved in such situation to a degree normally far beyond that which would be expected to adversely impact the objectivity of an attorney favoring self-representation.

Unfortunately, the parental propensity to name children as fiduciaries of their estates is at least acquiesced in, if not actually shared by, a high percentage of estate planning practitioners who fail to provide objective fulsome advice to their 40

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clients in making this momentous decision. The rationalization that an estate planning attorney is simply following a client’s wishes as to a financial fiduciary is unacceptable. Only through a comprehensive and extensive objective discussion with clients, disabusing them of any misconceptions and preconceptions, fully informing them of its inherent significant risks to family harmony, and providing viable alternative strategies, will clients even have the opportunity to make the informed decision on this issue they deserve and which estate planning attorneys are professionally ordained to provide.

Parents who have gained an appreciation of the high risk to family harmony engendered by their appointment of a child as financial fiduciary of their estate have a natural tendency to shift to preferring a more distant relative to serve in such capacity, such as a parent, brother or sister. However, prior to doing so, they should be advised that: (a) normally no estate administrative experience will be gained by such appointment; (b) depending upon the nature and degree of such relationship, such relationship will at least to some degree impair such relative’s objectivity in the administration of the estate; (c) they may be placing a burden on a relative at a time in their lives (such as during retirement) which can be quite inconvenient and obtrusive; (d) such appointment and resulting administrative actions with which a beneficiary may disagree, as well as administrative errors, can result in damaging relationships between such relative and the beneficiaries of the estate; and (e) there will be a probable expectancy by estate beneficiaries that such relative will perform fiduciary services for no fee.

Naming a Child to Serve as Co-Fiduciary with a Third Party The foregoing family harmony risks when a child serves as fiduciary are only partially assuaged by naming a child and an independent experienced third-party fiduciary, such as a bank or trust company, as co-fiduciaries. Although having such third party as a co-fiduciary should substantially reduce the administrative burden on the child fiduciary, other children may still be resentful in not having been named to serve in such capacity and may nonetheless blame their sibling for administrative decisions with which they disagree. Further, the lack of objectivity of a child may adversely impact the decision-making process. Finally, having a child and third party as co-fiduciaries may increase administrative costs. Consideration thus should be given instead to the alternative strategy discussed below of naming a child or children as “fiduciary discharger(s)” and appointing an independent experienced third-party as sole fiduciary.

Prior to concluding discussion on this option, it should be mentioned that such strategy nonetheless is worthy of consideration under a family business succession plan involving a farm or other closely held business. Parents are understandably quite reticent in reposing the management of their fam-

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ily business in a third-party fiduciary during the estate administration period. A family member thus could be named as co-fiduciary with an independent fiduciary for the sole and exclusive purpose of such child managing the family business or voting the interest in the business entity, either solely or as co-fiduciary with an independent third party, during the period of administration of the estate prior to its termination. The independent fiduciary would solely handle all other aspects of the estate administration, thus preserving family harmony in the more volatile aspects of the administration of the trust estate. However, this strategy is probably only viable with revocable trusts, for there is no statutory authority for a bifurcation of fiduciary responsibilities between or among executors.

Naming an Independent Third-Party Fiduciary A viable alternative strategy to naming a child or other relative as financial fiduciary is naming a financially astute, experienced and objective third party, such as a certified public accountant (preferably having no relationship, business or otherwise, with a family member) or corporate fiduciary (bank with trust powers or a trust company), to serve in such capacity. Such appointment unquestionably serves to greatly reduce internecine family stress and attendant risks to family disharmony, as well as provide a much greater assurance that the estate will be properly and objectively managed.

This is not to say that estate planning attorneys also are not proper candidates worthy of consideration as third-party financial fiduciaries. However, depending upon the situation and attorney under consideration, and notwithstanding the fact that an attorney would be expected to be quite competent as to all legal matters in the administration of an estate, several factors can militate against an attorney being the appointee.

First, a high percentage of estate planning attorneys simply do not enjoy serving as financial fiduciaries of estates, many facets of which involve non-legal matters they tend not to find enjoyable. Estate planning attorneys are by nature estate planners, not administrators. Attorneys less than comfortable or enthusiastic with the administrative aspects of managing

an estate would naturally have a lesser predilection to focus on attending to such task at the highest level of their ability. Naming an estate planning attorney as fiduciary would be analogous to asking an architect who designed a building to also supervise its construction, a request with respect to which the architect would likely demur, for similar reasons.

Secondly, an attorney may not have the experience, adequate support staff, or internal controls and procedures necessary to competently and efficiently handle the investment, accounting, and other ancillary administrative aspects unique to estate administration. Having the authority and legal ability under the instrument to delegate such facets to a third-party fiduciary may only serve to increase overall costs.

Third, many administrative tasks of a financial fiduciary requiring less expertise can be performed quite satisfactorily at a lesser cost than at average hourly attorney rates or perhaps even at paralegal fee rates (e.g., supervising distribution of tangible personal property items, meetings with family members and other professionals involved in the administration, etc.). Fourth, although there certainly is no ethical conflict in an estate planning attorney serving as a financial fiduciary under the testamentary instrument the attorney drafted, provided the attorney has adequately informed a client of other alternatives and their risks and benefits vis-a-vis appointing the attorney as fiduciary, estate beneficiaries nonetheless may have a negative perception of an attorney who drafted the estate planning documents also serving as fiduciary of the estate. They may view an attorney assuming both roles to be purely self-serving, question whether any exculpatory clauses in the testamentary instrument to protect individual fiduciaries, including the attorney, from simple negligence were proper or fully understood by the decedent, or believe the attorney would not admit to any deficiencies or errors in the testamentary instrument the attorney drafted. Finally, attorneys serving in such capacity would need to confirm that their fiduciary duties are covered by malpractice insurance.

The foregoing considerations lead many attorneys to have a standard practice of dissuading clients from naming them as fiduciaries, notwithstanding the remunerative aspect of such an appointment.

Competent third-party fiduciaries, such as certified public accountants having significant experience as financial fiduciaries and corporate fiduciaries, are impartial and can draw upon a wealth of practical and professional experience in managing estates. In addition to their family harmony enhancing benefits, they tend to make far fewer administrative mistakes, achieve on the average a better investment return, keep better records, provide more accurate and informative accountings, and have more knowledge of the complex laws governing the administration of estates (e.g., Kansas probate statutes, the Kansas Uniform Prudent Investor Act, and the Kansas Uniform Trust Code) than would a child serving in such capacity. www.ksbar.org | February 2020 41

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For obvious reasons, an estate planning attorney is likely to receive a greater economic benefit if a family member, rather than a third party, is named to serve as financial fiduciary.

Family members usually tend to select their parents’ estate planning attorney as fiduciary counsel to assist them in administering the documents the attorney drafted. They also typically need far more legal advice, assistance and support than would a third-party fiduciary experienced in handling estate matters. The enhanced risk of significant family disharmony when a family member is serving as a financial fiduciary additionally can significantly foster increased legal costs. Thus, when an estate planning attorney advises clients to consider the family harmony and estate administration benefits in naming an independent financial fiduciary, clients can be assured that their attorney is advising them solely as to what is in their best interest, not that which might benefit their personal financial interest.

Cost/Risk versus Benefit Analysis in Naming an Independent Trustee Clients, particularly those with modest estates, have an understandable fear that the costs of an experienced third party serving as financial fiduciary may significantly deplete their estates. Such fear is normally unfounded. Such costs can substantially reduce other administrative costs, for, as noted above, experienced third parties are possessed of the knowledge in the aspects of their administrative duties that family members must, and should, otherwise glean from their engagement of attorneys and accountants or risk economic damage to the estate should they not do so. It can also lessen, if not avoid, potential legal expenses that otherwise might have arisen from family squabbles due to the appointment of a family fiduciary. Finally, such administrative fee is deductible against the income or any estate tax liability of the estate, thereby normally resulting in a reduced “after tax” cost.

I.R.C. §§67(e)(1); 2053(a)(2).

Individual professional third-party fiduciaries, such as certified public accountants and attorneys, normally charge their services at hourly rates. Corporate fiduciary fees, depending upon the size and complexity of the estate and the corporate fiduciary named, are typically based on a percentage of the estate ranging from one to three percent of the size of the estate, the larger the estate, the smaller the typical percentage fee. If the property is income producing real property, the fee is typically a percentage of the income, say 10 percent of its annual net income. Such fee will normally be somewhat greater with respect to probate estates. Obviously, such cumulative fee would be greater should the corporate fiduciary also be called upon to serve as a fiduciary during a period of disability.

The fees for individual fiduciaries charging hourly rates are harder to compare, not only with respect to corporate fiduciaries, but also among themselves. Their total fee will be de42

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pendent upon their hourly rates, as well as that of their paraprofessionals, and the total time expended. Such total time in turn will vary among such individuals based upon their efficiency, knowledge, experience and sophistication and efficiency of their form systems. Also, as compared to bonded corporate fiduciaries, such services may or may not be covered by malpractice insurance, an important consideration.

Nonetheless, such fees, when converted to a percentage fee “after the fact,” would likewise only be expected to exact a very small percentage of the estate. By way of comparison, clients often routinely find acceptable a fee of perhaps one percent per year on their investment assets for financial and investment advice, and perhaps a six percent commission on the sale of their personal residence.

Certainly, when factoring in the risk of fractious family disputes resulting from the appointment of a family fiduciary, the net administrative costs in having a competent thirdparty serve as fiduciary can actually result in a net savings to the estate as opposed to a family member serving as a fiduciary. When the foregoing aspects are fully and objectively explained to clients under a comprehensive risk versus benefit analysis, clients normally will conclude that such fiduciary fees associated with the post-death administration of their estate are acceptable, and may well result in an economic benefit, particularly when the salutary aspects of enhancing family harmony and relieving children from bearing such administrative burden are also factors meriting consideration.

Such decision may be best posited with clients as analogous to that of taking out property insurance. Individuals insure against risks they have determined they can’t afford to take based on a risk versus benefit analysis. In the author’s city of Wichita, for example, there is an approximate 1 in 400 risk of a tornado or high wind destroying or seriously damaging a personal residence over a 40-year period. Nonetheless, despite such extremely low risk and the highly likely prospect of wasting casualty premium payments over an entire lifetime, most residents choose to insure against such loss. They do so having determined that such possibility, however remote, of such a major economic loss is a risk they simply can’t afford to take when balanced with the relative cost of insuring against it. By way of contrast, when individuals name a child as financial fiduciary of their estates, they are incurring an exponentially higher risk of damaging or destroying what they nearly typically view as a much more valuable intangible asset, family harmony, and a possible attendant high economic cost as well. Moreover, in contrast to property insurance, minimizing such risk is simply a matter of comprehensively addressing it in the estate plan, with no subsequent periodic premium payments being required.

Following comprehensive discussions of this issue with clients, the author has found that approximately three-fourths of clients will choose to not name a child in favor of an independent third party as financial fiduciary of their estates.

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Prior to engaging in such extended discussions with clients on the issue, the experience ratio approximated the inverse ratio.

The Role of a Fiduciary Discharger By naming an independent financial fiduciary, parents need not abjure any input of their children in the estate administration process. The family member who would otherwise have been the client’s choice as financial fiduciary may be named as “fiduciary discharger” in the testamentary instrument, possessed of discretionary authority to discharge a non-family party serving as fiduciary and name as successor fiduciary another third party (usually preferably limited to another third party such as a certified public accountant or corporate fiduciary). More than one child also may be named to serve in such capacity, with decision-making by a majority or unanimity of such children.

The author has found it normally preferable, depending upon the number of children and their individual attributes, for both family harmony reasons and to avoid children feeling “left out” of the process, to provide that all children serve as fiduciary discharger. Further, it is also typically advisable to provide that such decision be made by unanimity rather than by majority in recognition of the major import of such decision, to avoid children taking umbrage at being outvoted, as well as not risking the possibility that a majority decision was motivated by only a segment of the children in furtherance of their personal subjective interests. The tenure of a fiduciary discharger would end upon the termination of the estate and not extend to any sub-trusts created under the instrument.

As above discussed, family disharmony is minimized when family members are not directly involved in the estate administration process, whether as a fiduciary or even as a cofiduciary with a non-family member. The role of fiduciary discharger puts the desired family member(s) in control of the party who or which is to serve as fiduciary without having the burden or any “family baggage” which can accompany a family member being named as sole financial fiduciary or co-fiduciary with an independent fiduciary. The inclusion of such provision normally satisfies the preference clients often express for family input to be involved at least in some respect in the estate administration process. Such authority also may enhance the responsiveness of third-party fiduciaries to the beneficial interests of family members in the estate. Having a family member or members serve as “fiduciary discharger” additionally permits them to negotiate the lowest fiduciary fee possible. Consequentially, a high percentage of clients conclude that this approach achieves the “best of both worlds,” and due to its remoteness from actual fiduciary decision-making, carries little risk to family harmony in its operational phases.

Under the provisions of a revocable trust, to the extent not reposed in a fiduciary discharger, authority could also be re

posed in a Trust Protector or Special Trustee to discharge any trustee, other than the grantor or grantor’s spouse, thus possibly also including a child serving in such capacity, and appoint a corporate fiduciary or a successor corporate fiduciary, as the case may be, in the event such party has determined that same was merited by family disharmony or was otherwise desirable under the circumstances to ensure the proper and efficient cost administration of the trust estate.

However, because the provisions appointing executors are statutory, any change in the executor or personal representative in a probate estate, even that which could possibly be effectuated by a fiduciary discharger, is subject to judicial approval. K.S.A §59-701, et seq. Thus, such provisions are of lesser efficacy than if reposed under the provisions of a revocable trust, where such parties possessing such authority would be termed “trustee dischargers.”

Naming a Child to Serve as Financial Fiduciary only during a Period of Disability Although naming a child to serve as a financial fiduciary during a parent’s disability (financial agent or trust of a revocable trust) carries with it some risk of family disharmony, particularly should the child charge a fee for services, the much greater risk is normally during the post-death estate administration period. Thus, many clients may desire naming a child to serve as financial fiduciary in the event of their disability, when the need for professional advice in the administration of their assets is of lesser importance, while appointing an independent fiduciary to serve as fiduciary during the post-death administration of their estate. At that time, such child’s role could transition to that of a fiduciary discharger.

Clients making such choice, particularly those having modest estates, also may do so out of a concern that substantial thirdparty administrative costs would be incurred should there be an extended period of disability.

Nonetheless, a parent should be reminded of the burden that such fiduciary responsibility places on a child and be cautioned that there still is some degree of risk that the other children will question such child’s management of the parent’s assets, be suspicious of their influence on a parent, question any fees they take, and disagree on the child’s management of parental assets. Further, a child serving in such capacity may conceivably access the parent’s testamentary instrument and attempt to influence a disabled parent to amend the estate plan in the child’s favor, which may even occur in circumstances where the disabled parent has questionable legal capacity to execute a testamentary instrument.

Authorizing Child Financial Fiduciary to Appoint Successor Corporate Fiduciary Those clients who nonetheless choose to appoint a child or children to serve as a financial fiduciary of their estates typically further name other children as successor fiduciaries, perwww.ksbar.org | February 2020 43

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haps followed by a corporate fiduciary in the event there is no child willing and able to then serve. In that circumstance, the parent should be counseled that it may be advisable to consider providing in their testamentary instrument for a child serving as fiduciary to resign at any time and appoint a corporate fiduciary to serve in such child’s stead, thereby superseding the otherwise applicable fiduciary succession provisions.

Not infrequently, another child named as successor fiduciary, who may resent not having been named by the parent to serve as initial financial fiduciary, will unduly criticize or challenge a sibling’s fiduciary decision-making, perhaps in the hope such fiduciary will resign and open the door for the disgruntled child to become the successor fiduciary. Including such provision has the beneficial aspect of mollifying any further damage to family disharmony and avoiding the child financial fiduciary having to make the Hobson’s choice of either continuing to serve in a disharmonious family environment or resigning as fiduciary, only to have a disgruntled sibling serve as such child’s successor and continue the aggravation of family harmony.

It also allows a child serving as fiduciary to foster family harmony at the outset by informing siblings that such child did not ask for the appointment (assuming that is factually correct), did not consider such position to be other than a strictly financial matter to be handled professionally and objectively according to the provisions of the parent’s testamentary instrument, and does not intend to take a fee for serving as a financial fiduciary if the estate administration proceeds smoothly without family rancor. However, should such administration become disharmonious, such child would indicate such child would intend to exercise such option, given by a parent in furtherance of family harmony, to resign and name a corporate fiduciary to serve in such child’s stead. In a revocable trust, such provisions could also be made applicable when a parent is under a disability.

This option, in conjunction with the foregoing statement to siblings, should: (a) disabuse siblings of any notion that such child is on a “power trip;” (b) serve to disincentivize all siblings from fomenting family disharmony in view of the additional administrative costs they likely will perceive to be significant should their sibling resign in favor of a corporate fiduciary; and (c) remove the incentive of a successor sibling to unduly criticize the child serving as financial fiduciary or seek such child’s discharge in the hope of succeeding as financial fiduciary.

As with the aforementioned inclusion of a fiduciary discharger provision, this option is of lesser efficacy under the provisions of a will than a revocable trust. For unlike wills, such appointment of a successor trustee is not statutorily subject to judicial approval.

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Summary It’s tough to make predictions, especially about the future.

Yogi Berra Clients’ decisions in naming a financial fiduciary should only be made after due consideration of all its relevant aspects with their estate planning attorney and what such decision portends for the future of their family and estate plan. Unfortunately, a very high percentage of individuals executing financial powers of attorney and testamentary instruments are unlikely to have been sufficiently apprised of the foregoing factors to be able to make an informed decision. Far too often, there is only a brief superficial discussion of this issue, limited in essence to legal counsel inquiring of the client as to the client’s preference, and if the nominee is a child, perhaps follow up inquiries as to whether such child is mature, financially responsible and “gets along” with siblings.

Devoid of a comprehensive understanding of the complex issues involved and viable alternatives, a parent is typically predisposed to select a child as fiduciary of their estate or successor fiduciary following a spouse. Conversely, as noted above, in the author’s experience a strong majority of clients who have been comprehensively and objectively informed of the foregoing factors will decide instead to go outside the family in selecting a financial fiduciary. Even more telling, the author has experienced situations in which children who have been similarly informed of the potential risk to family harmony and the burden they will likely bear if named as financial fiduciary have indicated to parents they prefer declining such role in favor of the appointment of an independent third party fiduciary.

Nonetheless, whether resulting from a lack of thoughtful analysis, instinctively concluding that disharmony simply “can’t happen in my family,” or having decided that the benefits they perceive by naming a child as financial fiduciary outweigh the risks, a minor percentage of well-informed clients nonetheless will choose to name a child as financial fiduciary of their estate. In the end, such decision ultimately must rest with the client. The role of estate planning attorneys is not to proselytize, recommend or otherwise try to persuade clients one way or another in such determination, but simply to objectively inform them of all appropriate considerations, as well as alternative fiduciary strategies. In short, the financial fiduciary “pros and cons balance sheet” should speak for itself. From the perspective of an estate planning attorney, whatever decision duly-advised clients ultimately make in their choice of financial fiduciary should always be considered the appropriate decision for that client.

Disposition of Tangible Personal Property Following the selection of the financial fiduciary of the estate, the disposition of tangible personal property among

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children probably incurs the second greatest risk to family harmony. Such risk is clearly at its zenith if a child is serving as financial fiduciary. Consequently, this aspect of estate administration is worthy of more than a brief discussion. The goal of most parents is to provide for their distribution among children either as equally in value as possible or provide for an equitable method in their distribution, or a balancing thereof.

The various methods in doing so have wide variances not only in their ability to accomplish such goals, but also in their impact on family harmony.

At the outset, it should be acknowledged that the import of this risk varies considerably based on the nature, quantity and value of such property in any given estate. Frequently, such facet has little import on family harmony due to most of a decedent parent’s property of significance to children having been previously distributed by parents to them prior to their death. In other situations, it may consist of a houseful of such items, many of substantial economic and emotional value. Thus, the important aspects of the distribution methods outlined below should be considered in that vein. That being said, as most estate planning attorneys well know, even items of little economic value often take on great emotional significance in the process of their post-death distribution among children.

The high risk of family disharmony in the disposition of the tangible personal property is primarily due to the emotionally-charged environment in which it takes place, replete with competition among siblings for the possession of personal property items imbued with sentiment, nostalgia and which often serve as an enduring emotional touchstone to parents the children have lost. In such complex environs, the problem areas are legion, including parental approaches in discussions with their children eliciting their preferences in this regard, the failure of parents to specifically delineate their personal items disposition in lists, the selection of the financial fiduciary, the discretion reposed in the financial fiduciary in making such distribution, the provisions in the testamentary instruments governing their definition and distribution, and the prospect of children intentionally violating the applicable distribution process.

The last above problem area is of initial concern in the distribution process. Irrespective of the process, steps should be initially taken by the fiduciary following a parent’s death to ensure that the process is not compromised at the outset. A child may “jump the gun” and employ “self-help” by surreptitiously taking items from the parent’s residence. This is not that infrequent an occurrence, particularly when a child has a key to the residence and, with respect to larger items, a ready means of transporting its contents, such as a pickup. This possibility has been termed by the author’s partner as the “pickup doctrine.”

A propitious avoidance strategy is for the financial fiduciary

to timely secure the parental residence following the parent’s death by changing the locks. This action also protects against the residence being entered by third parties who also may possess a key. Nonetheless, this protective action, if undertaken by a child serving as fiduciary is likely to meet with immediate umbrage by siblings. Other children tend to distrust a sibling’s motives, can be in high dudgeon in being “locked out” of their parent’s residence by their sibling, and may even have suspicions of their own that such action was taken by the sibling for the purpose of purloining residential items for the sibling’s personal benefit.

Another problem area is provisions in the instrument either failing to clearly define tangible personal items to be distributed to family members or which are too inclusive. Overly broad definitions exacerbate family harmony problems by unnecessarily increasing the types of items, particularly those of high value for which children typically have little sentimental attachment. Thus, consideration should be given to limiting the definition to specified categories of sentimental personal property items (e.g., jewelry, scrapbooks, pictures, clothing, heirlooms, etc.) or items of interest for perhaps personal usage (e.g., furniture, recreational and yard equipment). This normally excludes such “big ticket” items as cars, airplanes, and boats, as well as valuable paintings, artworks and collections (such as coins, stamps, and figurines). Such items not only typically have little sentimental value, they are often more in the nature of investment property. When having substantial monetary value, they tend to greatly destabilize family dynamics in their distribution.

A more limited definition also favors estate planning objectives. Tangible personal property items having little sentimental or personal use value to children, particularly when they are of significant monetary value, are usually best distributed under the residuary clause of the testamentary instrument among family members in the same proportions as the parent’s other remaining assets.

Disposition of Tangible Personal Property by List As estate planning attorneys are well aware, Kansas law assists in the disposition of tangible personal property items by providing, without need of following the formalities of wills, for an individual to dispose of tangible personal property not used in a trade or business by simply leaving a written list (hereinafter referred to as a “Personal Effects List” or simply “List”), provided there is a specific reference in the testamentary instrument to the possibility of leaving such List. K.S.A. §§ 59-623; 58a-418. The law requires that the List either be in the handwriting of-or signed by-the testator. Id. Further, the List must describe the items with “reasonable certainty” so that they are identifiable. Id. Such disposition would have been able to be effectuated even in the absence of such specific statutory authority in revocable trusts simply by drafting the List in the form of a trust amendment. Quite obvious to estate www.ksbar.org | February 2020 45

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planning attorneys, identifying the beneficiaries of furniture and household effects items by referencing numbers or names attached to the back of the item, rather than by a description on the List, although a time-worn technique employed by many parents, is inherently flawed due to their “mobile” nature, a facet well appreciated by children disapproving of a specific disposition.

If parents duly provide for the disposition of all significant tangible personal property items of interest to children either in their testamentary instruments, or usually much more efficiently and desirably, under the provisions of a Personal Effects List, the potential resentment by children of parental choices in their disposition aside, family harmony would not be adversely impacted. However, given the normally significant number of such items, their changing makeup, the vicissitudes of parental desires regarding their disposition, procrastination, and simply the reluctance of many parents in undertaking this task, this is understandably far from a normal occurrence.

Nonetheless, rather than leave the post-death disposition of tangible personal property to methods discussed below, none of which are completely without family harmony risks, parents should be strongly encouraged by their estate planning attorneys to prepare the List. The List should, at a minimum, include items the parent perceives to be of the most significant sentimental or personal use value to children. At a minimum, its preparation should also reduce the possibility of contentious, and frequently baseless, assertions by a child that a parent “told me that [a particular item] would be mine.” If true, such item obviously likely would have been included in the List. It would also bring into question the location and possession of any item that was on the List but absent from the residence.

The preparation of a Personal Effects List is especially important in second marriages where, unless the personal residence and its furnishings are to pass to the decedent’s children, the default provision in the testamentary instrument should normally provide for the disposition of household furniture and furnishings to the surviving spouse, with the remaining items going to children, typically in as equal shares as practically possible. This avoids children and a stepparent engaging in divisive arguments over the ownership of the parent and stepparent as to the typically numerous tangible personal property items in and about the personal residence that are in such categories. In that situation, the parent should ensure the List directs the disposition of any items that the parent desires to pass to a surviving spouse or to their children in the event such items would have passed otherwise under the foregoing provisions of the testamentary instrument if not on the List.

Unfortunately, Personal Effects Lists sometimes have a habit of coincidentally “disappearing” when kept in an insecure 46

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place, such as in an unlocked cabinet or drawer in the parent’s residence, or even in a secure place, such as the parent’s safe deposit box, when a disapproving child is named as successor financial fiduciary or otherwise has access to the box. Thus, to best protect against an unintended disclosure of the List during the parent’s lifetime, as well as its protection following the parent’s death, the List should be placed with the parent’s original documents in a sealed envelope in a safe deposit box.

Irrespective of whether a child is a signatory on the box, a copy of the most updated List should be sent to the parent’s estate planning attorney and so noted on the List, to protect against its “disappearance.”

The List should be revisited periodically, removing any items which may have been lost, sold, or destroyed in the previous year, and adding more recently acquired items which parents believe might be of sentimental or personal use value to their children. The parent also may find it desirable to make a video of such items for identification purposes. It would also be informative to include in the audio component of such video the provenance and relationship of any such items to family heritage.

Parental Discussions with Children in Preparation of List Prior to preparing a Personal Effects List, it is advisable for parents to discuss with children their preferences in the devolution of tangible personal property items. Rather than leave clients to their own devices in that respect, it is preferable for estate planning attorneys to outline methods for parents to garner sufficient information for them to make informed and equitable distribution decisions (from the parent’s perspective) that are least hazardous to family harmony. The discussion that follows analyzes the effectiveness of various strategies in achieving that objective.

Parents should preface such discussions by advising children that the distribution method chosen following their deaths will be designed to maximize family harmony, the parent’s most important estate planning goal, while avoiding any significant monetary disparities among children in their disposition. Children should be advised such method is thus designed to encourage preferences based solely on an item’s sentimental or personal use value rather than its actual value.

To that end, children would be further advised that any substantial inequality in the value of personal items of significant value they select and which are left to them on the List, or which are otherwise distributed to them following their death, are subject to a possible value adjustment to the extent their value is over a relatively modest amount, affecting their share of the remaining assets in their estate.

Each child would then be instructed to prepare a list of items they would like to receive following the parent’s death, listing them in order of their preference. Children would be informed that in preparing the List, the parent would con-

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sider both the priority placed on items by mutually interested children and the overall number and priority of requested items of each child. Further, children would be informed that also for family harmony reasons, their submitted preference lists would not be shared by them with their siblings, nor would the List be disclosed to any child prior to their death.

This also would avoid any possibility, however perceived to be remote, of any child attempting to persuade them to make changes to the List, seek current distribution of any items, or object to their disposition to a sibling.

The List would then indicate whether any items distributed under the List are, or are not, to be subject to any such value adjustment. In order to preserve confidentiality, the List should not be stored in a place accessible to a child. Rather, as noted above, it should be kept in a secure location.

Distribution of Remaining Tangible Personal Property not Disposed by List

Unfortunately, as noted above, only a minority of parents even prepare a Personal Effects List disposing of their tangible personal property. Those that do usually leave a List that is far from comprehensive. As such, it is a requisite that the testamentary instrument appropriately address this situation by providing a mechanism for the disposition of remaining items that is facilitative to the maintenance of family harmony. Placing too much discretion in such disposition method in the financial fiduciary incurs the risk of the financial fiduciary choosing a method not conducive to its maintenance, which is particularly hazardous when a child is serving in such capacity. Thus, if not otherwise articulated with some particularity in the testamentary instrument, it would be advisable for parents to leave a precatory document, perhaps as an attachment to the testamentary instrument, suggesting the appropriate method consistent with the nature of their assets, and which are not disposed of by List, with their estate planning documents.

The distribution procedures discussed below applicable to items not on a Personal Effects List are designed in varying degrees to satisfy the predominant family harmony prerequisite, i.e., not providing an incentive for children to choose tangible personal property items based on their economic value as opposed to their sentimental or personal use value. For should a child in such process end up being in receipt of personal property items having a value significantly greater than such child’s share, the parent’s overall intended proportions of their estate passing to children will be skewed. Even more importantly, it can result in significant family disharmony not only as a result of any significant resultant economic disparity, but by placing children in competition for the more valuable items in the process, thereby fostering resentment when a sibling chooses items perceived by other siblings to be based strictly on their economic value.

In all such processes, it could be provided that a minor child could be represented in such distribution process by the trustee of any sub-trust created under the instrument for such minor child, or if none, the guardian appointed under the instrument for such child, irrespective of whether such appointment had then judicially occurred.

Initial Procedure Regarding Substantive Items As an initial procedure, following the death of the parent it would be advisable for the financial fiduciary to seek a list from each child with respect to any remaining property of the parent not on the List that the fiduciary has determined has a potential value in excess of a modest threshold amount (e.g. $200 or more). Such threshold amount avoids the process as to all items being fully tied to economics and allows for some offset should an asset be overvalued. The fiduciary would inform the children preparing the list that such property, if professionally valued for more than such amount, will result in such excess being offset against such child’s proportionate share of the parent’s residuary estate should such child receive such asset. Consequently, pursuant to the wishes of the parent, they should select such item primarily on its sentimental or personal use value, not its economic value.

The fiduciary would then seek a “walk through appraisal” by an experienced estate salesperson as to the value of all such selected items by children which are over the threshold amount, hereinafter referenced as Substantive Items or Items. A professional appraiser may need to be sought for selected unique category Substantive Items such as jewelry, collections, antiques and heirlooms that were not disposed of by the List. Such valuations would then be made known to all children listing a Substantive Item, with any child who is then informed of an Item’s valuation, being able to withdraw any such child’s preference as to an Item prior to its actual distribution.

If only one child was desirous of an Item, the fiduciary would distribute the Item to that child. If more than one child desired an Item, the Items in which the children desiring such Items would be chosen by a random sequential lottery method, with the sequence being reversed in each subsequent round having the same participants. Such process would continue until all such Items in which a child had exhibited a preferential interest were distributed.

The overall differential among children in the value of Items each child received in the process over the threshold amount of each such Item would then be an advancement as to each respective child’s share of the residuary estate. All remaining personal property items would be distributed between or among children under one of the procedures below without having any advancement aspect, excepting a Substantive Item in which no child received under the foregoing preference procedure. www.ksbar.org | February 2020 47

resting in pieces

Distribution by Agreement of Children At first blush, it would appear reasonable and consistent with most parental desires for the testamentary instrument to give children a reasonable amount of time, say ninety days following a parent’s death, to agree among themselves on the disposition of remaining tangible personal property items for which any child has an interest. Such approach is quite common and the period for its expiration need not extend beyond the expiration of the time period delineated in the testamentary instrument for the List to be located or be of no force or effect, say 90 days. In the event the distribution of items in which children have an interest cannot be agreed upon, such items would then be distributed among children under one of the remaining methods below. However, this procedure normally should not be authorized if there is a minor child not represented by another party as noted above so as to be unable to have sufficient maturity to meaningfully participate in this procedure.

However, clients should be counseled at the outset by the fiduciary that such authorization for agreement by children is fraught with a high risk of contentious arguments in seeking an agreeable resolution, with each child often having a subjective reason for receipt of individual items (e.g., “I gave it to Mom and I should get it back,” “Mom promised it to me,” or “Mom already gave it to me”). Moreover, a family harmony enhancing request which normally should be made by the financial fiduciary that in-laws not be present at such discussions, may have the opposite effect if made by a child serving as financial fiduciary.

If the initial Substantive Item procedure was utilized, such agreement procedure would appear to have limited efficacy.

For in that situation, there would be no remaining Substantive Items in which a child expressed an interest and none of the remaining items would be of significant economic interest.

Distribution by Auction One distribution method for the remaining tangible personal property items would be by auction, either by public or private bidding, or the use of “virtual money” in a private auction. In a public auction, the attendees would be children and the general public. Children ostensibly would be equally treated from an economic standpoint, as the proceeds would be allocated to the residue of the estate and distributed along with other remaining assets proportionally among children as provided in the testamentary instrument.

However, this may not be the substantive result. Children, when competing against each other and the public in the bidding process, may have paid in excess of the fair market value of items, thereby proportionately diminishing the share they otherwise would have received in the estate. Nor is a public auction procedure without significant family harmony pit48

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falls, principally because it pits children against each other in the bidding process. Children having to bid beyond the market value of an item to secure an item may resent other children who drove up the bidding price. Children who were outbid by other children may resent other children to whom items were lost in the bidding process. It can also have the possible deleterious consequence of a high-bidding stranger walking away with family heirlooms, notwithstanding the benefit of the proceeds passing to children. Thus, the economic equality of a public auction must be balanced against the not insignificant risk of family disharmony and potential distribution of family significant assets to strangers in the process.

If a closed bid silent auction is held, which may or may not have non-family invitees as well, the bids would remain sealed until all bids were in. If a child is serving as financial fiduciary, unless the bids are all opened in the presence of the other children at the close of the auction, there can be suspicions they may have been opened by the financial fiduciary prior to the financial fiduciary also making a bid. A sealed bid silent auction has the benefit over an open auction in avoiding confrontation in the bidding process, but it does not avoid the anxiety of children having to determine the purchase price necessary to outbid siblings who may have an interest in the same item, as well as possible third parties who may be additional invitees. Further, there still may be a high degree of resentment by children who have been outbid, particularly with respect to items of high sentimental interest to them, including possibly by a third-party invitee.

In a “virtual money” auction process, each child is given an equal amount of “virtual money” with which to bid on personal property items. The use of “virtual money” in the auction process is even more problematic and normally should be avoided in comparison to the foregoing auction approaches for several reasons. Although each child in this process is given an equal amount of “virtual money” to use in the bidding, it creates additional tensions in children having to strategize and compete among themselves in using their limited

resting in pieces

amount of allocated “money” to ensure they have enough left to secure remaining wanted items, thus leading to a questioning of the entire process. Moreover, although designed to put each child on an “equal monetary playing field” as opposed to an actual bidding process, there is no certain nexus between the amount of “virtual money” used in bidding and the market value of items received. Consequently, economic parity is not automatically obtained regarding the value of the items received due to there being no auction proceeds to allocate to the residue. It would only have been obtained if the fiduciary had the right to adjust economic differences among children in the items received having significant value as an advancement against their shares of the residue.

In short, even if economic parity is achieved among children regarding the proceeds of a public or private auction, the tendency of the auction process to cause anxiety among children, the potential inequity in substantive economic benefits conferred among children by the bidding process, the possible resentment of children who were outbid by siblings or a member of the general public, and the confrontational nature of the proceedings if an open bidding process is chosen, are aspects of the auction procedure that are unavoidably antithetical to the maintenance of family harmony. For the foregoing reasons, the use of the “virtual money” auction procedure appears to have even less to commend it.

Finally, if the Substantive Item initial procedure has been employed, either in conjunction with a Personal Effects List or otherwise, there would be little efficacy in the implementation of this strategy, for all items of significant financial value in which a child has an interest would have already been distributed. In that event, the lottery method below would likely be considered the more appropriate.

Distribution by Lottery Another distribution method is by lottery. A common lottery method is the use of a random number selection process determining the sequence of each child choosing a desired tangible personal property item during every round of the selection process. Under the basic application of this method, there is typically no monetary adjustment among the children for any disparity in the values of items distributed. This method is frequently preferred by estate planning attorneys and their clients due to its simplicity. However, unless the sequence is reversed in each subsequent round, such method would continue to favor the parties having the earlier preferences in each subsequent round.

Although a lottery procedure is equitable in its sequential random selection, absent the implementation of the initial preference procedure regarding Substantive Items by the fiduciary prior to the inception of the auction procedure, it nonetheless retains the aforementioned aspects inapposite with family harmony in both not dissuading children from

selecting property based on its economic value and the possible resultant significant disparity of the value of the tangible personal property items each child receives in the process.

Distribution by Financial Fiduciary Pursuant to Testamentary Instrument Guidelines The final distribution method is for the testamentary instrument to provide for the financial fiduciary to distribute remaining tangible personal property items not disposed

by List as fairly as practically possible, and/or as equally as possible, among children regarding their value as the fiduciary determines to be fit and proper. This is a quite common default provision, following a failure to of children to agree to their distribution among themselves under the aforementioned agreement procedure delineated in the instrument. Its popularity is probably attributable to its simplicity, typically being in the estate planning attorney’s standard provisions with little to no discussion with clients as to their potential adverse import on family harmony or alternative strategies.

However, from several perspectives it can be the most hazardous to family harmony, as well as the most arbitrary, when a child serves as family fiduciary.

First, a child having a financial conflict of interest would have to agree to the distribution of all items in the initial “agreement phase,” compounding the family harmony detriments of its inclusion in the first instance. Second, such child is also given broad discretion as to the distribution of the remaining items between or among such child and a sibling or siblings, further compounding such negative aspects and conflicts of interest in the process.

Conversely, in the hands of an experienced and competent third-party financial fiduciary, it is probably the most protective of family harmony, for it removes a child totally from having import in the final determination of the disposition of any such items with respect to which more than one child is desirous of receiving. Moreover, if such method follows the initial Substantive Items procedure, there will be a significant amelioration of its negative aspects. Further, if the initial Substantive Item procedure had been followed, there would be no need for the “agreement phase” and the lottery procedure for the rest of the items would tend to be the more appropriate.

However, independent financial fiduciaries would not be expected to welcome being burdened with this degree of discretion and attendant responsibility and the discretion accorded the fiduciary is rife with potential disagreements among children as to the final distribution. For irrespective of the party serving as fiduciary, in the absence of a prior Substantive Item preference procedure, it is very difficult to divine a method of distribution in most such circumstances that would result in property having relatively equal value being distributed between or among children and at the same time balance children’s preferences in that regard. www.ksbar.org | February 2020 49

resting in pieces

Disposition of Undistributed or Unwanted Items Following application of the foregoing procedures, it is desirable for the testamentary instrument to include a provision for the disposition of all remaining items. This includes the discretion to sell such items (e.g., at an estate sale) and distribute the proceeds under the residuary clause of the instrument, as well as the discretion to donate items having a de minimis value to charitable institutions or dispose of them in any other manner the financial fiduciary should deem appropriate.

Physical Distribution of Tangible Personal Property The testamentary instrument should also address the financial fiduciary’s responsibility in the delivery or storage of tangible personal property items. This issue can come into play when children who are not in the same geographic area as the decedent parent, either temporarily or permanently, request that items be shipped and the subject property is of a size, weight or value that such costs (including insurance) is significant, particularly in relation to the value of the property (e.g., a couch or refrigerator). Temporary absences can arise when the child is currently incapable of picking up the property (e.g., in military service overseas, temporarily disabled or in ill health, or possibly even under detention) and such child requests that the child’s portion of the tangible personal property items be stored until such child is able to pick them up.

The obvious issue is whether the estate is to bear the burden of either such costs.

This issue should not be left open or entirely at the discretion of the fiduciary, for as is the case with many matters involving the administration of a parent’s estate, it can result in a level of family disagreements far beyond that merited by the relatively small amount of value involved. If the financial fiduciary pays such costs without authority in the testamentary instruments to charge the residuary estate share of the child directly benefiting with an advancement equal to such costs, such costs would be borne by all children, often to their consternation. Thus, the governing instrument normally should make it clear that the financial fiduciary is not required to pay the costs for the packing, shipping, or storage of such tangible personal property items passing to children. The child receiving the item would be required to either pay such costs or pick up the item within a reasonable period, say forty-five days of being notified, or the fiduciary would be authorized to sell the item, including to another child, and distribute the net proceeds to the child.

Regarding the disposition of tangible personal property items to a minor child, the testamentary instrument should provide for such items, in the discretion of the fiduciary, either to be held in any residuary trust created for such child under the instrument, by the child’s conservator, or by a custodian named by the financial fiduciary under the Kansas Uniform Transfers to Minors Act, which permits such property to be held until such child attains age twenty-one. K.S.A. §§381706; 38-1721.

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Electronic Duplication of Family Pictures, Recordings, Letters, Records and other Documents The increasing ease and efficiency of electronic reproduction has reduced the importance of actual possession by children of significant parental tangible and intangible personal property items consisting of family pictures, family video and audio recordings, letters, personal records and other similar type of instruments or property. Consequently, the testamentary instrument should specifically authorize the financial fiduciary to electronically duplicate any such items subject to copying and other duplication for dissemination among all children who desire them, with any attendant costs being borne by the estate. This avoids any disagreement in the bearing of such costs and mollifies potential resentment among children who did not receive the original item in the distribution process.

Conclusion The death of a parent is an emotionally tumultuous event for children. The administrative task of distributing tangible personal property items among children in such environment is particularly problematic and delicate, involving items of great familial interest and emotional significance to children, as well as competition for their possession and ownership. Most estate planning attorneys are aware of numerous instances in their practice in which family relationships have suffered irreparable damage in this process. Correspondingly, their clients have often had such instances in their own families. If this quite precarious administrative task is not properly and comprehensively addressed by legal counsel in the estate planning process and testamentary instruments, an enduring legacy of family disharmony can be left in its wake. n

Look for Part II of this article in the March Issue of The Journal of the Kansas Bar Association About the Author Timothy O’Sullivan is a partner in Foulston Siefkin LLP in Wichita. He graduated from Washburn University School of Law in 1975 and received an LL.M. in Taxation degree from the University of Missouri-Kansas City School of Law in 1982.

Tim is a Past President of the KBA Real Property, Probate and Trust Section, the KBA Tax Section, and the Kansas Chapter of the National Academy of Elder Law Attorneys. He has also served as an adjunct professor in estate planning at the University of Miami School of Law and the University of Missouri-Kansas City School of Law, and at Washburn University School of Law for the past 25 years. tosullivan@foulston.com

Intersection of Domestic, CINC, and Juvenile Offender Law, and what lawyers should advise clients about them A Judge’s View from the Bench

by Hon. Kevin M. Smith

T

he best lawyers specialize. They pick a practice area and acquire sufficient knowledge to serve clients to the best of their ability. Failing to specialize can result in something less than outstanding representation. The old adage, “jack of all trades, master of none,” has merit. However, some practice areas naturally bleed into others. Lawyers who ignore such intersections jeopardize their clients’ interests, their professional reputations, and opportunities to take advantage of practice growth opportunities that come with an expanded knowledge base.

This article discusses three such practice areas—Domestic, Child In Need of Care (CINC), and Juvenile Offender (JO)—and the points of intersection that demand that lawyers acquire at least enough knowledge to advise clients on the collateral consequences of clients’ actions, as well as re

cent legislative changes that impact points of intersection between these areas. The consequences include losing custody of children, incurring financially crippling child support obligations, making children wards of the state, children facing criminal charges they might otherwise have avoided, and infliction of long-term psychological damage on children.

Intersection of Domestic and CINC Consider a rare but not unheard of practice in domestic court. One parent not only wants custody of the children, but to cut off the other parent from any contact. She wants to use her children as weapons against Dad. To do so she alleges that he abused them. She assumes that the more outrageous the allegations the better chance she has of sole custody, so she claims Dad sexually abused one or more. She miscalculated. www.ksbar.org | February 2020 51

intersection of domestic, CINC and juvenile offender law

Her judge makes a common sense observation. If the abuse was occurring over a period of years, where was she when it occurred? Was she complicit in allowing the abuse despite obvious warning signs? Is she making it up? If the judge suspects that the alleging party is wrongly motivated, in addition to the psychological impact of parental alienation, there’s the risk that such parent will tell the children of her unfounded allegations, thereby inflicting even more psychological damage on the children.

If the domestic judge suspects the alleging party has ulterior motives that rise to the level of abuse, he can order the State to file a CINC case. K.S.A. 23-3207 provides: (c) Nonparental residency. If during the proceedings the court determines that there is probable cause to believe that the child is a child in need of care as defined by subsections (d)(1), (d)(2), (d)(3) or (d)(11) of K.S.A. 2019 Supp. 38-2202, and amendments thereto, or that neither parent is fit to have residency, the court may award temporary residency of the child to a grandparent, aunt, uncle or adult sibling, or, another person or agency if the court finds by written order that: (1) (A) The child is likely to sustain harm if not immediately removed from the home; (B) allowing the child to remain in the home is contrary to the welfare of the child; or (C) immediate placement of the child is in the best interest of the child; and (2) reasonable efforts have been made to maintain the family unit and prevent the unnecessary removal of the child from the child’s home or that an emergency exists which threatens the safety of the child.

The Kansas Department of Children and Families (DCF) received 73,407 reports of abuse in 20191 with just 4.2 percent, or 1,541 substantiated.2 Only substantiated or affirmed reports result in DCF filing cases.3 But when a judge believes abuse is ongoing to the extent that probable cause exists to support the above elements,4 the State has no choice but to file the case and remove the children from parental custody.5 There will be no investigation before the case is filed. Often, the outcome is that the alleging parent loses custody and the CINC court acquires jurisdiction over custody and support.6 As frequently, the other parent gets custody only after the children are in foster care for months, which inflicts further harm and psychological/mental health damage on the children.7

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If the court places the children with DCF and not a parent, both parents will be subject to child support orders pursuant to the Kansas Child Support Guidelines.8 If the domestic lawyer doesn’t acquire at least a rudimentary knowledge of the CINC code9 and advise clients on what might happen to the client and the client’s children, he is doing a disservice to the client and harming the children.

Conversely, if the lawyer is aware of the domestic and CINC court’s duties under K.S.A. 23-3207, he can prepare the client for the fallout and give her a better chance of obtaining custody, or at least provide DCF what it needs to place the children with family to decrease the potential harm foster care inflicts on children.

Practice Tips for Domestic/ CINC Intersection If the client has a good faith belief that the other parent abused the children, she has a duty to tell the court. However, even with a good faith belief, the above risks can’t be ignored. The lawyer must tell his client about these risks. He must also prepare the client to share her concerns so the judge believes that her motivation is the children’s best interests.

The best way to make the client’s altruistic motivation clear is to give the judge placement options other than the client and consistent with child welfare best practices, specifically, relatives such as grandparents, aunts, or uncles, which are prefered under federal guidelines. “In fact, in order for states to receive federal payments for foster care and adoption assistance, federal law under title IV-E of the Social Security Act requires that they ‘consider giving preference to an adult relative over a nonrelated caregiver when determining a placement for a child, provided that the relative caregiver meets all relevant state child protection standards.’”10 K.S.A. 38-2286(a) mandates that the court give a grandparent who requests custody “substantial consideration” for placement, and it would behoove the client to identify such grandparents (even if they are parents of the child’s other parent) when alleging abuse.

Intersection of CINC and JO In 2015 the Kansas legislature embarked on a mission to reform juvenile justice by reducing the courts’ ability to incarcerate juveniles and keep them in the community. It did so by focusing on community-based resources and evidence-based programs such as mental health and substance abuse treatment via Senate Bill 367.11

intersection of domestic, CINC and juvenile offender law

For all drug offenses, misdemeanors, and felonies Levels 5-10, the court cannot incarcerate pre-adjudication (before plea or finding of guilt) unless it finds that the youth poses a danger to himself, others, or others’ property, or is unlikely to appear; and post-adjudication, if the court finds that the juvenile has exhausted community-based resources and poses a danger to others or others’ property, or is unlikely to appear.12 Also, the court can’t impose sanctions or incarcerate a youth once he has served 45 days post-adjudication.13 There is an exception to the above limitations. If the type of offense and the juvenile’s criminal history and offense level makes him eligible for direct commitment to a juvenile correctional facility, the court can so commit. This commitment ranges from 6 months up to the juvenile’s 22.5 year with 6 months post-release supervision.14 SB 367 leaches over into the CINC code in one major way, one with repercussions for juvenile offenders and children who are impacted by poor parenting by drug addicts, criminal offender parents, or generally irresponsible parents.

SB 367 generally prohibits placement of juveniles in a nonparental home even when parents are unable to parent due to drug use, mental health issues, or otherwise.15 No judge who considers the child’s best interests wants to release a juvenile to such parents when he maxes out the 45-day incarceration limit.

Prior to SB 367, the court could retain jurisdiction up the the juvenile’s 18th birthday. There was no incarceration limit for probation violation sanctions. This enabled the court to monitor such youths and ensure that their needs were met up to the juvenile’s 18th birthday. Post 367, for most offense levels, once adjudicated plus 15 days, the case length caps at 12, 15, or 18 months notwithstanding the 45 day incarceration limit and inability to incarcerate absent the necessary findings.16 That is, if a juvenile is adjudicated at the age of 12, the maximum length of court supervision is 18 months, so the court loses any ability for an alternative placement at 13.5 years.

What’s the alternative to releasing a 13 year old juvenile to a bad parent? It is a joint staffing where DCF and the DA meet to decide whether a CINC case should be filed. If the troubled youth with awful parents is under 16, there’s a decent chance the staffing will recommend that a CINC case be filed, so the criminal defense attorney representing such a juvenile needs a basic knowledge of the CINC code to advise the youth and parents about what may happen.17 This includes awareness of how long the privately-retained attorney will be billing clients for his services in the CINC case (months if not years),18 the likelihood that parents will be subject to child support orders,19 and the possibility that the youth will be placed in foster care or youth residential facilities.20

When CINC Cases Lead to Juvenile Criminal Charges Pursuant to SB 367, as of July 1, 2019, courts can no longer use juvenile detention facilities as secure care placements. Secure care placements are needed when juveniles habitually run from their placements, which places them at great risk of harm. When a juvenile exhibits such behavior, the court issues an order to remain in placement and any violation of that order results in the court placing the child in a secure facility for up to six months.21 It is the duty of DCF and its contractors to find a facility for the child, and there are a limited number of facilities in Kansas, which results in waiting lists for days or weeks before beds are available. Before July 1, 2019, the court could authorize juvenile detention facilities as secure care placements. Now, if there isn’t a bed immediately available, all the judge can do is authorize a secure care placement and hope the child doesn’t run before a bed becomes available.22 CINC children are victims. Many have been abused or neglected. DCF files CINC cases to protect them from such abuse. These children sometimes act out. They commit petty crimes, but often district and county attorneys exercise their discretion to not charge these children with such crimes given the uphill battle they already face. Sadly, the unintended consequence of SB 367’s bar on using juvenile detention facilities as secure placements is district and county attorneys charging children for petty crimes so the court can hold them indefinitely via the “harm to self” and “unlikely to appear” findings.23 Pre-adjudication,24 the only limit to this detention is that the court will review every 14 days.25 There is no time limit before adjudication.26 On the CINC side, the child is represented by a guardian ad litem (GAL), so the GAL must inform the child about these consequences.27 Practice Tips for CINC/JO Intersection Lawyers representing juvenile offenders must inform their clients that if they don’t comply with terms and conditions of probation they could be subject to a CINC case and its ramifications, including being removed from the parental home and placed in foster care. Moreover, due to the conflicting roles, the lawyer cannot serve as the GAL in the CINC matter www.ksbar.org | February 2020 53

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even if the client is satisfied with the lawyer’s representation.28 Conversely, the GAL in a CINC case must advise the client that the consequences of juvenile adjudications will limit educational and career opportunities if the juvenile doesn’t remain in placements. As with the lawyer in a JO matter, the GAL must let the child know that the guardian’s role is different from the role of a JO lawyer. Thus, the GAL may not represent the client in the JO case.29 Ethical Considerations for Attorneys who Fail to Obtain a Working Knowledge of Areas of Intersection, and who Don’t Advise Clients about These Intersections Rule 226, 1.1 Competence, provides that, “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

Comment [8] states, “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.”

Thus, whatever a lawyer’s specialty among these practice areas, lawyers should attend CLEs on CINC (the Office of Judicial Administration [OJA]30 holds best practices CLEs in every region), JO law (the Wichita Bar Association [WBA]31 holds JO law CLEs annually), and domestic law (the Kansas Bar Association [KBA]32 family law section holds CLEs annually and throughout the year) so they can advise clients on how deep and wide their legal troubles will get if they don’t consider the collateral consequences of their actions. Failing this, expect disgruntled clients impacted by such lack of competence to file complaints with the disciplinary administrator. n

About the Author Hon. Kevin Mark Smith is a judge in the 18th Judicial District, Sedgwick County, where he currently serves in juvenile court. Judge Smith practiced law in Kansas for more than 16 years before Gov. Brownback appointed him to the bench in Dec. 2015. He graduated cum laude in 1999 from Regent University School of Law where he served as Issue Planning Editor of Law Review. ksmith@dc18.org

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1. See Child Protective Services (CPS) Intake Reports FY 2019 (July 2018 - June 2019), http://www.dcf.ks.gov/services/PPS/Documents/FY2019DataReports/CPS/CPSintakereports_ReceivedFY19.pdf.

2. See Investigative Findings FY 2019 (July 2018 - June 2019), http:// www.dcf.ks.gov/services/PPS/Documents/FY2019DataReports/CPS/ Investigative%20Findings_FY2019.pdf.

3. Id. DCF added the classification “Affirmed” in 2016. 1585 cases were affirmed in 2019, which is in addition to the substantiated findings.

4. See K.S.A. 38-2243(f ).

5. See K.S.A. 23-3207(c).

6. See K.S.A. 23-2210(d). CINC custody and support orders take precedence over domestic orders until the CINC case is closed.

7. See, e.g., Eric Adler, Frequent moves don’t just harm foster kids’ emotions—they hurt their brains, Kansas City Star, December 15, 2019, https://www.kansascity.com/news/special-reports/article238204784. html#storylink=cpy.

8. See K.S.A. 38-2243(j).

9. See K.S.A. 38-2201 et seq.

10. See Placement of Children with Relatives, www.childwelfare. gov, https://www.childwelfare.gov/pubPDFs/placement.pdf. Citing 42 U.S.C. § 671(a)(19).

11. See http://www.kslegislature.org/li_2016/b2015_16/measures/ documents/summary_sb_367_2016.pdf (summary of SB 367).

12. See K.S.A. 38-2331.

13. See K.S.A. 38-2391(h).

14. See K.S.A. 38-2369.

15. See generally K.S.A. 38-2330.

16. See generally K.S.A. 38-2391.

17. See generally K.S.A. 38-2201 et seq.

18. Average overall out-of-home placement for foster children is 21.4 months, reintegration case plans, 10 months, and adoption case plans, 39 months. See Length of Stay and Reason for Ending Out of Home Placement SFY2019 July 2018 - June 2019, http://www.dcf.ks.gov/services/PPS/Documents/FY2019DataReports/FCAD_Summary/LengthofstayFY2019.pdf.

19. See K.S.A. 38-2243(j). Technically, the court has authority to order child support in juvenile offender cases regardless of whether a CINC case is filed, but this is seldom done. See generally K.S.A. 38-2315.

20. See K.S.A. 38-2243(g).

21. See generally K.S.A. 38-2260.

22. See K.S.A. 38-2260(h).

23. See generally K.S.A. 38-2331.

24. Under the juvenile justice code, adjudication happens when a judge or jury finds a juvenile guilty, or the juvenile pleads no contest or guilty to the alleged offense. See K.S.A. 38-2356.

25. See K.S.A. 38-2343(i).

26. See generally K.S.A. 38-2343.

27. See K.S.A. 38-2205(a).

28. Guardian ad litems represent the child’s best interests and not necessarily the client’s desires (K.S.A. 38-2205(a)), while lawyers are bound by the professional rules of conduct to “abide by a client’s decisions concerning the lawful objectives of representation.” See Rule 226, Kansas Rules of Professional Conduct, 1.2 Scope of Representation.

29. Id. 30. http://www.kscourts.org/court-administration/.

31. https://www.wichitabar.org.

32. https://www.ksbar.org.

Do you write poetry?

Care to share?

• Seeking original works from our members to celebrate National Poetry Month in April 2020 • Selected poems will be shared in the April 2020 issue of The Journal of the KBA • A special substantive piece on Poetry in the Law will appear in that issue of The Journal.

Please send submissions to: editor@ksbar.org Deadline: Friday, March 6th

I decided that it was not wisdom that enabled poets to write their poet��, but a kind of instinct or inspiration, such as you find in seers and prophets who deliver all their sublime messages without knowing in the least what they mean.

-- Socrates

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Depression • Addiction • Thoughts of Suicide Self-referral is an act of courage.

Referring a colleague is an act of compassion.

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www.ksbar.org | February 2020 55

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The Journal of the Kansas Bar Association

law students’ corner • environmental justice

Environmental Justice—It’s OUR Problem, Too

by Hannah Lustman

Minority and low-income populations tend to experience a disproportionate share of environmental harm.

I

n Spring 2019, I enrolled in Professor Uma Outka’s seminar on Environmental Justice. When I entered the course, all I knew about environmental justice was what I read in Professor Outka’s course listing. At the start of the semester—I’m sorry to admit—that even though I cared about the environment, I conceptualized environmental harm as a faraway one: fires in California, melting ice caps at the edges of the earth, and burning coal in industrial centers. I recycled at home and replaced my plastic iced coffee cups with reusable mugs, but assumed there was little I could do to investigate or address these problems from where I sat in Kansas. I learned that—especially because I’m training to become a lawyer— this assumption was very wrong.

There is no singular definition for environmental justice, but the EPA’s definition is representative. Environmental jus-

tice is “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”1 Environmental justice scholars focus on who experiences the brunt of environmental harm, and how minority and low-income populations tend to experience a disproportionate share of it.2 In Professor Outka’s class, I learned that environmental justice issues are the result of much more than climate change.

I also learned that environmental justice is an intensely important issue everywhere I’ve lived and in every place I hold dear. I began to see environmental justice as a cause I was passionate about, and I wanted to share a few ways law students might educate themselves about it and begin to advocate to advance it. A few examples of environmental justice issues will help to illustrate my points. www.ksbar.org | February 2020 57

law students’ corner • environmental justice

When a state covets the business of powerful companies, or seeks to be a host to particular industries, there may be environmental justice consequences. For example, one area of Louisiana known as “Cancer Alley,” between New Orleans and Baton Rouge, is the site of more than 150 petrochemical industrial plants and refineries.3 Proximity to plants and refineries has also meant proximity to chemical spills and emissions: in 2013, 331 accidents in Cancer Alley released over 800,000 pounds of sulfur dioxide and 200,000 pounds of carbon monoxide into the air.4 The residents of Cancer Alley are predominantly African-American and have become “plagued with sickness” due to toxic chemical exposure.5 In addition to cancer diagnoses, residents often suffer from skin rashes and respiratory problems.6 Another emergent environmental justice issue is rooted even closer to home. A recent compilation of the 25 cities most affected by climate change listed Kansas City, Missouri at number five.7 The most current census data available indicates nearly 30 percent of Kansas City residents are black or African-American and another ten percent are Hispanic or Latino.8 At the same time, studies show the benefits of one solution to climate change may not distribute evenly among white and non-white persons. Many view energy efficient power sources as a critical tool in the fight against climate change, but research shows that minority households are often left behind in the transition to energy efficient utilities.9 The consequences of this disparate transition to energy-efficient utilities has both equitable and practical consequences: Kontokosta et al. found that even after controlling for income, minority households have higher energy cost burdens (ECBs) than non-Hispanic white households.10 Implementing energy efficient measures could save some families as much as $1500 per year in utility bills.11 Cancer Alley and the impact of climate change on Kansas City implicate different environmental harms, regions of the country, and affected populations. Nevertheless, they both show how law student engagement on the local level can put advocacy skills to work for environmental justice.

Local governments and their subsidiaries (e.g., zoning commissions) hold powerful sway over who experiences environmental harm when they engage in such responsibilities as awarding permits for the construction of power plants and waste dumps. Law students might consider attending meetings for these local governing bodies because public participation may be low, even at critical decision times. Attending a zoning meeting may not sound like the most fun study break ever suggested, but I would urge my fellow law students to look into how they might combine a few hours of civic engagement with their hard-earned advocacy skills to advocate against the unfair distribution of environmental harms in their own neighborhoods.

Law students may even be able to bring new issues to the attention of their local lawmakers. Those hoping to inform 58

The Journal of the Kansas Bar Association

themselves about environmental justice issues in their communities should consider exploring the EPA’s “EJSCREEN” tool.12 EJSCREEN is a mapping tool that combines environmental and demographic data sets in a user-selected geographic area.13 EJSCREEN is free to use and easily accessible through EPA’s main website or a Google search for “EJSCREEN.” The user can choose from eleven environmental indicators including those for ozone, lead paint, and proximity to hazardous waste facilities.14 There are six total demographic U.S. Environmental indicators includProtection Agency ing the percent minority population, percent low-income population and percent of children under the age of five in a particular area.15 The EJSCREEN site contains a written guide and tutorial videos for individuals who want to learn how to use the tool. Once you are familiar with the tool, you can select particular geographic areas or addresses and use the filters to illuminate the interaction between the environmental and demographic indicators.

There are several easy and practical steps you can take to get up to speed on the fight for environmental justice in your area, and I hope you take the opportunity to do so. Your advocacy costs you less than a stainless steel reusable straw, and could have a much wider impact. n

Environmental justice is:

“the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”

About the Author Hannah Lustman is a current 3L at the University of Kansas School of Law. She is originally from St. Louis, Missouri and holds a B.A. in Psychology and History from Washington University in St. Louis. She will begin practicing in her hometown following her graduation from KU Law in May. Outside the law school, she enjoys cooking, going to spin class, and spending time with her fiancé and their rescue dog. hlustman@ku.edu

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ENVIRONMENTAL JUSTICE: LEGAL THEe , d th n f th g o n O gs: soluti ts are nt Existi d findin es—utility cos e prese 15 (4TH ED.) (Barry Hill, poral re ORYtuAND PRACTICE cation. n w m lo a , , y te re y d d g T ld n e o s t a liti AC al rch stra ation, and uti ithout househ d low spatial Survey. In thised., v2018).

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Id. o ri co us ents c in energy ens across ho el variations in ereas higher useholds expe rgy improvem 6. Id. ev rd ho , wh ene cost bu and building-l to B of 7% ands, minority lds, low-cost 7. See Michele The Weather.com C nts Berger, E n l, a o a b s h vestme w and y inDisruption region ousehold ha come house c in n e Climate Index: 25 U.S. Cities Most e ie d m n e ic o s n ff c fi h in rgy e xplore ouChange, income even within de s. For lower ear. seWEATHER.COM, alysis eby Climate s of ene Our anAffected h u c e ld y , fo o m r ly h o e e b e w-inc Nota use lo shift th affordability. e hous 1,500 p s $ it n http://stories.weather.com/disruptionindex. a to h w s c t a o W s p h h g Citie ttem and s Hispanic sts by as muc ll housin olicies y effi-City, Missouri, UNITousing. energ dy we a Kansas co this stu ens and overa an energy p y-inefficient h 8. aQuickFacts: t a e In : tr energy e t d poli- https://www. ic rb t rd u rg teBUREAU, th c ED STATES CENSUS u e e a n s b n r e rg ie e t p v c s ven, ta y poli census.gov/quickfacts/kansascitycitymissouri ay for old co asurement-dri r-quality and ri rg h w -d e e a s n e ta u e k a o a d h T e ed oo from m pact on en of p lop equity-bas and that apply(last visited December 22,ilit y their im ata generated bear the burd b 2019). ce eve ti s d ju to l afforda d s ly ta .

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| 46 4 EJSCREEN, UNITED STATES ENVIRONMENTAL 7 4 6 .1 63.2019 PROTECTION AGENCY, https://www.epa.gov/ /019443 0 a 8 0 jp .1 /r 0 m DOI: 1 nline.co ejscreen/overview-demographic-indicatorst tandfo ilable a a v a n ejscreen (last visited December 22, 2019). r versio

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www.ksbar.org | February 2020 59

Members in the News NOTE: Members in the News items are largely gleaned from newspaper articles from across the state, provided by our clipping service.

If there are questions or concerns regarding information printed here, please feel free to inquire through the following email: editor@ksbar.org

NEW POSITIONS Danielle Hall has become the director of the Kansas Lawyers Assistance Program. Before accepting the position, Danielle was deputy disciplinary administrator and diversion coordinator in the Office of the Disciplinary Administrator for the Kansas. Hall has a BA in political science from Washburn and a law degree from the Washburn University School of Law. She is chair of the Topeka Bar Ass’n. technology committee , co-chair of the KWAA minority women in the profession committee and a member of the KBA law practice management committee. She is also on the Kansas Task Force on Lawyer Well-being.

Burton Harding was selected to serve as the city attorney for Parker, Kan. Harding succeeds Richard M. Fisher Jr. in that position. Harding also serves as city attorney for La Cygne and Prescott, and city prosecutor for Pleasanton.

The Parker city council named Doug Barlet to serve as acting judge. Barlet also serves as Linn Valley and Pleasanton municipal judge.

Mike Hinkin was chosen by Riley County commissioners to fill a vacancy for an attorney on the indigent defense panel. Hinkin is in private practice but previously worked for the Manhattan firm, Knopp and Biggs. The indigent defense panel in Riley County has six attorneys who serve as independent contractors for the county and handle legal cases under the county’s jurisdiction. Marty Keenan has established Martin J. Keenan, LLC at 129 E. 2nd Street North, Wichita, Kan., 67202. Phone numbers: 316-201-1259 (office) and 620793-0347 (cell).

Jeffrey N. Lowe opened his own office, Lowe Law, LLC, on January 1 of this year. Located at 245 N. Waco Street, Ste 125, Wichita, Kan. 67202, the firm’s number is (316) 8478847. Lowe was also recertified as a family trial advocate for the National Board of Trial Advocacy. Advocates submit to rigorous screening to receive this designation. Board Certification is the highest, most stringent and most reliable honor an attorney can achieve.

Lisa A. McPherson has joined the law firm of Triplett Woolf Garretson, LLC in Wichita. McPherson practices in the areas of medical malpractice defense and health care law and has participated as defense counsel in more than 40 jury trials in both state and federal courts. McPherson also has an accomplished history of practice planning and regulatory 60

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compliance for the healthcare industry. She earned her Juris Doctorate from Washburn University School of Law. A member of the Wichita Bar Association (including its Medical/Legal Committee and Civil Practice Committee), the American Health Lawyer’s Association, the Kansas Association of Defense Counsel, the KWAA, the Wichita Women’s Attorney Association, as well as the KBA and ABA, Isaac Wright has joined the law firm of Smith, Burnett & Hagerman, LLC, in Larned. A recent graduate of the Washburn University School of Law, Wright was an intern with the Washburn Law Clinic, representing indigent clients in a variety of civil matters. He was recognized with the Irvine E. Ungerman Award for Excellence in Clinical Practice for his highly competent representation. With an eye toward small town/rural practice, Wright served internships in both Oberlin (with the law office of Steve Hirsch) and Larned (with Smith, Burnett & Hagerman). His practice will include civil and criminal litigation in addition to probate, estate planning, mental health law, corporate law, oil and gas, real estate and elder law.

NAME CHANGE Baty Otto Coronado PC was announced in January as the new name for the firm formerly known as Baty, Holm, Numrich & Otto P.C. The new iteration of the firm includes three new partners: Steve Coronado, Mark Katz and Chris Heigele who had all been members of Coronado Katz LLC. New attorneys include Steve Coronado, Paul Gordon, Chris Heigele, Mark Katz, Kevin Miller, Lauren Nichols; newly elected partners are: Erica Briscoe, Andrew Donelan and Elizabeth Murray. The firm now has offices in Kansas City, St. Louis, and Springfield, Illinois, serving clients in Kansas, Missouri and Illinois.

NOTABLES: Cheyenne County Attorney Leslie Beims offered to the county commission a year-end summary of the office’s caseload which included 67 criminal cases, 122 traffic, one juvenile case, 11 CINC and 11 fish and game cases.

Tom Bell, president and CEO of the Kansas Hospital Association, announced his retirement to become official in September of this year. He began his KHA career as vice president and legal counsel after working as a health care attorney for the Topeka firm of Goodell, Stratton, Edmonds and Palmer. Bell is a native Kansan from Holton who gradu-

members in the news

ated from Kansas State University and Washburn University School of Law. Before going to work for the law firm, Bell clerked for Kansas Supreme Court Justice Harold Herd.

John Bullock and Marco Serrano were recently profiled in a Lawrence Journal-World article that ran in a number of Kansas newspapers about attorneys who have become clerics later in their careers. Bullock is a lawyer with Stevens & Brand LLP in Lawrence as well as serving as a curate at an Episcopal church. He was to be ordained as an Episcopal priest in January. Serrano left his law career in New York City to attend Yale Divinity School (he had previously earned his juris doctor at Yale Law.) He was ordained and is currently the rector at St. Margaret’s Episcopal Church in Lawrence.

Members of the Ellis County Bar Association presented a check for $5,000 to the First Call for Help fundraising campaign to construct transitional housing for individuals and families in transition. First Call will focus on success in the areas of stable employment, money management, housing stability and caring for self and family. Those who qualify will be assisted with the intent that they will transition into permanent housing within six months. Ellis Co. Bar President Colton Eikenberry and Secretary-Treasurer Wendy Rohleder-Sook made the presentation as part of the ECBA’s effort to positively impact the community by using funds raised from member dues and proceeds from the Annual CLE Seminar which the ECBA holds in Hays.

Patrick Hoffman, county counselor for Barton County, had his contract extended for a year to continue to provide legal services for the county. The law firm of Sherman, Hoffman and Hoffman in Ellsworth had been contracted with last year and Patrick replaced his partner Carey Hipp who was elected as a judge for the 20th Judicial District.

Newly sworn in Kansas Supreme Court Chief Justice Marla Luckert was quoted in a recent article discussing the role of the courts with respect to the political leanings of the current governor and members of the Kansas Legislature. Luckert was quoted as saying, “…many of them are trying to make the courts be political creatures, which is contrary to the entire concept that our founders established, not only nationally, but at the state level.”

Kansas Court of Appeals Judge Thomas Malone, Lawrence attorney Keynen Wall and state solicitor general Steven Obermeier have been chosen by the Kansas judicial nominating commission as finalists for the Kansas Supreme Court seat made available by the retirement of former Chief Justice Lawton Nuss. Malone has served on the Court of Appeals since 2003 and had been a Sedgwick County district judge for 12 years before that. Wall has been with a KC-area law firm since 2015 and earlier managed the Supreme Court’s office for appeals in death penalty cases. Obermeier spent 30 years as a Johnson County prosecutor before taking his state

position; he was also a finalist for the vacancy ultimately filled by former district judge, Evelyn Wilson.

Levi Morris, Barton County Attorney, was selected to that position following the resignation of the previous county attorney, Amy Mellor. Morris completed the two years remaining on Mellor’s term and will be eligible to run for the position in November. Morris reported to the Barton County Commission that the office is caught up on cases, with charges either being filed, declined or returned to law enforcement for further investigation. Members of the commission were impressed by the efficiencies instituted by Morris and are pleased that criminal cases are down from previous years.

Jerry Palmer, Topeka attorney, recently celebrated the 40th anniversary of the founding of Topeka’s Palmer Law Group, formerly known as Palmer, Leatherman, White, Girard and Van Dyk. Palmer graduated from the University of Kansas School of Law and now serves as “of counsel” to the law group, which specializes in personal injury cases, auto crashes and nursing home neglect. Palmer was president of the KTLA, was thrice awarded a Certificate of Excellence from the Association of Trial Lawyers of America, was named a Fellow of the International Academy of Trial Lawyers and was the first lawyer in the country to be certified by the National Board of Advocacy for civil trial advocacy.

G. Joseph Pierron, Jr., the longest-tenured judge to serve on the Kansas Court of Appeals, is set to retire on April 3.

Pierron has written 392 published opinions and has heard thousands of appeals since he joined the court in 1990. Pierron commended the non-judicial staff, pointing out that the Court of Appeals was able to handle its caseload thanks to those research attorneys and administrative assistants. He advises new judges to “do what the law requires even if we don’t like to do it. And don’t get behind; keep up.” Pierron was born in KCK, grew up in Olathe, attended Rockhurst College in Kansas City, Mo., and earned his J.D. from the University of Kansas School of Law. Tom Stanton, Deputy Reno County DA was elected by the Reno County Republicans to complete the term of District Attorney Keith Schroeder who planned to leave the office to run for a district judge seat. Stanton must stand for reelection this year. Stanton has earned a prosecutor of the year title twice— from the KCDAA in 2005 and from the Kansas Narcotics Offices Association in 2017. Originally from New Mexico, Stanton moved his family to Kansas where he attended KU and then the University of Kansas School of Law. Stanton has a great deal of experience in a variety of criminal law areas, but a main focus has always been as a drug prosecutor.

The Hon. Evelyn Z. Wilson was profiled as the state’s newest Supreme Court justice by the St. Francis Herald & Bird City Times because of her ties to that area. Wilson began her law career in Oberlin after earning her law degree from Washburn University Law School. n www.ksbar.org | February 2020 61

members in the news

Obituaries

Martin Brownlow Dickinson, Jr. (4/13/1939 - 1/5/2020)

Dean of The University of Kansas School of Law (1971 - 1980) Martin Brownlow Dickinson, Jr. died January 5, 2020 at his home in Estes Park, CO in the company of his family.

He was born April 13, 1938 in Kansas City, MO, the son of Martin B. Dickinson, Sr., and Ruth Van Riper Dickinson.

His parents were graduated from the University of Kansas (KU) and its Law School (KU Law), the latter in 1928. Both of his grandfathers were also lawyers, and his grandmothers were involved in public education, in Dodge City, KS and Independence, MO. Martin spent his childhood in Kansas City, MO and graduated from Southwest High School in 1956. He was graduated from KU in 1960, majoring in Political Science. He was a member of Phi Delta Theta fraternity.

At KU, in a math class Martin happened to sit behind a woman from Salina, KS named Mary Ann Mize. He married her in August 1960. He continued his education in Political Science at Stanford University, from which he received a Masters in 1961. Martin and Mary Ann then moved to Ann Arbor, Michigan where she obtained a Masters in Chemistry and worked for Parke-Davis, and he obtained a JD from the University of Michigan in 1964. He was Editor-in-Chief of the Michigan Law Review and began to develop the interest in tax law that would become his career.

After three years of law practice in Colorado with the firm of Holme, Roberts, and Owen, Martin joined the faculty of 62

The Journal of the Kansas Bar Association

KU Law. He served on the law faculty for 48 years, becoming the longest-serving faculty member in KU Law’s history.

At the age of 33, Martin was named Dean of KU Law, a position he held from 1971-1980. As Dean, Martin orchestrated the funding and planning of New Green Hall, occupied by KU Law in 1977. During his deanship numerous new faculty were hired, and the racial and gender diversity of both the faculty and the student body broadened dramatically. The scholarly productivity of the faculty increased as well. By the early 1980’s KU Law ranked fourth in the nation for scholarly productivity, following only Chicago, Stanford, and Harvard.

After his tenure as the Dean of KU Law, Martin returned to teaching and writing, as well as private law practice. He received the KU Chancellor’s Award for Excellence in Teaching (1988), the KU Law School’s Immel Award for Teaching and Excellence (1997), and a Kemper Fellowship for Teaching Excellence (2002). The KU Law Moreau Award for Student Counseling was awarded to him (1988, 1995, 1997, 2009).

He also taught at the University of Michigan and the University of Colorado, and in study abroad programs in London and Istanbul. Martin chaired the Law School Accreditation Committee of the American Bar Association. He often said he felt very fortunate to have found a career that engaged him so much and that he considered it a great privilege to teach the law students.

obituaries

Martin authored or edited dozens of books on taxation and estate planning–some used as texts at more than 120 law and business schools across the country. In recognition of this and other scholarly efforts, he was named to the Robert A. Schroeder Distinguished Professorship in 1986.

Martin lectured extensively on estate planning and taxation. He received the American Bar Association’s Harrison Tweed Award for Excellence in Continuing Legal Education.

The Kansas Bar Association awarded him the President’s Award for Outstanding Service and the Phil Lewis Medal of Distinction. Martin’s many years of service to Kansas were recognized when he received the KU Steeples Service to Kansans Award.

For 22 years Martin practiced as Of Counsel with the Lawrence law firm of Barber Emerson, and was listed in the taxation and trusts and estates categories of The Best Lawyers in America. He was elected to membership in the American College of Trust and Estate Counsel and the American College of Tax Counsel.

Martin’s years in Lawrence with Mary Ann also involved raising his two children. He was an engaged and enthusiastic father, committed to their education. He was an avid reader of history and an opera fan. His children remember many meticulously planned family trips to historical and cultural sights and national parks. His son Jim felt fortunate that despite his father’s busy life he always found time to do an activity with Jim and Nancy at the end of the day.

John Francis Baty (7/12/1988 - 10/19/2019) John Francis Baty, 31 years old, of Kansas City, Missouri, passed away on October 19, 2019. He passed away of an undiagnosed mass that ruptured overnight. He passed peacefully in his sleep. A visitation for his family and friends will be held from 6:00 8:00 pm on Wednesday, October 23, 2019 at McGilley’s at 12301 State Line Road, Kansas City, Missouri 64145 and a memorial celebration of life will follow 6:00 8:00 pm on Thursday, October 24, 2019 at Saddle & Sirloin Club at 14401 Holmes Road, Kansas City, Missouri 64145. John was born in Kansas City on July 12, 1988. He graduated from Pembroke Hill School and continued on to receive his undergraduate degree at the University of Notre Dame. After college, he attended the University of Missouri Kansas City School of Law where he received his juris doctorate. He followed in his father’s footsteps and practiced as an attorney at Baty Otto Coronado, PC alongside his father and sister. He enjoyed the outdoors, the Kansas City Chiefs, cooking, and traveling. He enjoyed reading about history and won every trivia contest. He will be remembered for his generosity and sense of humor. He is survived by his parents Ellen and Lee

Martin was widowed in 1996 when his first wife Mary Ann died. He married Sallie Francis in 1998 and she joined him in Lawrence, KS until their recent full-time move to Estes Park, CO. He had been drawn to the Estes Valley and Rocky Mountain National Park since his childhood. In his later years with her, their common love for travel and hiking in the Swiss Alps and the Colorado mountains provided for many shared experiences with family and friends. He had a thirst for knowledge that went beyond tax law. He was a voracious reader of history and anything informative. With his grandchildren he was an adventure guide, constant educator, formidable chess opponent and ever present cheerleader.

Martin is survived by his wife of 21 years, Sallie Francis Dickinson, a daughter, Nancy Dickinson, a son, James Dickinson, two grandchildren, Olivia Dickinson and Evan Dickinson all of Colorado; a sister, Margaret Schnackenberg of Glenview, Illinois; and seven step-grandchildren of Colorado and Switzerland.

Martin will be missed enormously by all of us who benefitted from his teaching, wisdom, kindness, guidance and sense of adventure. A memorial service was held at St. Andrew’s Episcopal Church in Kansas City, MO on January 30, 2020.

Remembrances and condolences can be shared at www.allnuttestespark.com The family suggests donations to: KU Endowment, in support of the Dean Martin B. Dickinson Teaching Award www.kuendowment.org/givenow n

Baty, his sister Laura Kaufman and her husband Christian Kaufman, his sister Kathryn Byrd and her husband James Byrd, and his sister Ann Baty and her husband Ethan White as well as his nieces and nephews Roland, Maggie, Sera, Jack and Matthew. In lieu of flowers, the family asks that memorial donations be made in John’s honor to Bishop Sullivan, 6435 Truman Road, Kansas City, Missouri 64126. Donations can also be made by visiting the website www.bishopsullivan.org n

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obituaries

Ronald Eugene Manka (12/12/1944 - 12/13/2019) Ronald Eugene Manka of Kansas City and Chapel Hill, N.C. passed away on Dec. 13, 2019 in Chapel Hill, N.C. after a well-fought 20-year battle against Parkinson’s Disease.

Ron and his other half his identical twin brother Richard were born on Dec. 12, 1944 in Wichita, Kan. to Jane (Meeks) and J. Ashford Manka. As toddlers, Ronnie and Richie invented their own language, spent every second of the day wrestling (sometimes going too far), and made a habit out of running outside naked in opposite directions of course after their baths. Fortunately for the boys, they were cute because their antics were not appreciated by their older sister of five years, Carolynne (Dr. Manka), whose quiet life of leisure was destroyed by the boys’ entry into the world. In 1954, when the boys were ten, their bond was intensified by a near-death accident in which Ron lost half of his right leg playing on dangerous equipment at a construction site. Rich was a firsthand witness to the tragedy and saved Ron’s life by holding and comforting him for over an hour until the ambulance arrived. The accident was a defining moment in Ron’s life, transforming him from a typical kid into a fighter. After being told he may not live, he lived. Told he might not walk, he walked. Promised that he would never run, he ran. Guaranteed that he would never play competitive sports, he made football history by becoming a freshman starting placekicker for the University of Kansas. The team’s football coach at the time, Jack Mitchell, took special interest in Ron and regularly used him as a motivational example of how to hustle.

Coach Mitchell also intentionally placed Ron’s locker next to tailback Gale Sayers (aka “Kansas Comet”) as a constant reminder to the team of the importance of hard work no matter what.

In 1959, Ron began dating his first love, Ann Patterson, when they were both 15 years old freshmen at Wichita East High School. Six years later, in 1965, they exchanged vows in Wichita, Kan. Their first daughter, Kimberly Ann, was born in 1966 in Lawrence, Kan. Their second daughter, Lora Christine, was born in 1970 in Ann Arbor, Mich. Tragedy struck Ron’s life in 1985 when Ann passed away at the age of 40 from Non-Hodgkin’s Lymphoma. It was from Ann’s battle against the disease that Ron learned the true meaning of determination, strength and holding on to life for your family. When Ann passed away on Dec. 24, 1985, Ron was catapulted into the unknown waters of single parenting while trying to grow his career.

Ron earned a B.S. in Business Administration - Cum Laude from the University of Kansas in 1967 and his Juris Doctor - Cum Laude from the University of Michigan School of Law in 1970. He practiced corporate law with an emphasis on public financing and spent most of his career at Lathrop Gage, departing only for a brief stint at Butler Manufacturing. Ron took an extraordinary amount of pride in his career 64

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at Lathrop Gage. Among his proudest accomplishments was heading a team of lawyers that handled over 100 enhanced municipal bond transactions on behalf of the Resolution Trust Corporation (RTC). He also represented Science City in the successful $255 million restoration of Kansas City’s Union Station ($29 million of which was funded by the federal Department of Transportation). The restoration of Union Station garnered Ron a national reputation as an expert in mass transit public financing. Another highlight of Ron’s career was helping Haskell Indian Nations University attempt to stop the State of Kansas from destroying a sacred wetlands area adjacent to Haskell. Ron held board positions with many organizations including the Greater Kansas City Chamber of Commerce, Science City at Union Station, Haskell Indian Nations University, Center for Management Assistance, Genesis School, Kansas City Friends of Alvin Ailey, Lyric Opera, Colorado Music Festival in Chautauqua, Colo., and Silicon Prairie Technology Association. He served as an Elder and Trustee at Village Church from 1983 1988.

In 1999, Ron was diagnosed with Parkinson’s Disease. In true form, he was unstoppable for many years, until the cruelties of the disease forced him to slow down. Ultimately, the greatest defeat in Ron’s life may have been having to retire early from a career that he loved and that brought so much meaning to his life. But, in Ron’s true spirit of never giving up, he decided to use his new-found freedom to focus on his photography, listen to even more opera and spend time with his grandkids. Ron found love again and married Susan (French) Minnix in 2012. Susan was a high school friend from Wichita East who was now living in Chapel Hill. Ron relocated to Chapel Hill and Susan spent the last seven years of his life researching Parkinson’s specialists, experimental trials, treatment plans and medication schedules so that Ron could stay on track for as long as possible.

Ron is survived by his wife Susan Minnix of Chapel Hill; his daughter Kim Manka Mann of Kansas City, her husband Scott and their two children, Annie and Maddie; his daughter Lora Garrison of Kansas City, her husband Cameron and their two children, Ashford and Francie; his brother Richard Manka of Kansas City and sister Dr. Carolynne Manka of San Diego and their families. He is also survived by Susan’s daughter Amy French of Chapel Hill and Gardiner, Maine; her son Stuart French and his wife Yajun of Chapel Hill; and her son John French and his wife Anh and their two sons, Sam and Ollie of Atlanta; Ron was preceded in death by his wife Ann (Patterson) Manka; his brother Alan Manka; and Troubles, his favorite of all dogs. Services took place on Sat., Jan. 11, 2020 at Village Presbyterian Church. In lieu of flowers, the family suggests donations to Village Church Ronald Manka Memorial Fund (6641 Mission Rd., Prairie Village, KS 66208) or to your own organization of choice. n

Appellate Decisions All opinion digests are available on the KBA website at www.ksbar.org/digests. We also send out a weekly newsletter informing KBA members of the latest decisions. If you do not have access to the KBA members-only site, or if your email address or other contact information has changed, please contact member and communication services at info@ksbar.org or at (785) 234-5696. For the full text of opinions, access the courts’ website at www.kscourts.org

Kansas State Supreme Court Criminal

CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— MOTIONS—SEARCH AND SEIZURE STATE V. CHAVEZ-MAJORS BUTLER DISTRICT COURT—AFFIRMED ON ISSUE SUBJECT TO REVIEW AND REMANDED COURT OF APPEALS—AFFIRMED IN PART NO. 115,286—DECEMBER 20, 2019

FACTS: Chavez-Majors convicted of aggravated battery while driving under the influence, based on motorcycle accident that caused injury to another person. Park Ranger first at scene requested EMS to draw blood from unconscious Chavez-Majors. District court denied motion to suppress the blood test results, finding the warrantless search was reasonable under probable cause plus exigent circumstances exception which satisfied the three-prong test in Schmerber v.

California, 384 U.S. 757 (1966). Court of appeals affirmed the denial of motion to suppress, but reversed the conviction because Chavez-Majors had not knowingly and voluntarily waived his right to jury trial. 54 Kan. App. 2d 543 (2017).

Review granted on Chavez-Majors petition for review of panel’s decision affirming the denial of motion to suppress. State’s cross-petition for review of the jury trial issue was denied.

ISSUES: (1) Warrantless search—probable cause; (2) warrantless search—exigent circumstances HELD: Court of Appeals decision regarding probable cause is affirmed. Probable cause determination is supported

by Chavez-Majors driving at high rate of speed around curve and into parking lot he knew held parked cars and congregating people, and by strong odor of alcohol on Chavez-Majors breath.

As to whether exigent circumstances supported the warrantless blood draw, lower courts did not have benefit of Mitchell v. Wisconsin, 588 U.S. __ (2019). Because ChavezMajors has not had a chance to fully litigate his claim under the change of law created by Mitchell, case is remanded to district court for an evidentiary hearing and district court ruling on exigency in light of Mitchell.

STATUTES: K.S.A. 2013 Supp. 8-1567; K.S.A. 22-3216

APPEALS—CONSTITUTIONAL LAW—CRIMINAL LAW— EVIDENCE—STATUTES STATE V. JENKINS SHAWNEE DISTRICT COURT—AFFIRMED NO. 118,120—JANUARY 10, 2020

FACTS: Jenkins led police on two car chases that resulted in a fatal crash. Jury convicted him of crimes including firstdegree felony murder and fleeing and eluding police. Over Jenkins’ objection, district judge allowed State to introduce recordings of five calls Jenkins made while in jail using his personal identification number (PIN), finding the State sufficiently established Jenkins’ identity as one of the speakers. On appeal, Jenkins claimed the district court erred by admitting the recordings of the jail calls, arguing reliance on his PIN was insufficient to establish he was the male speaker. He also challenged the constitutionality of K.S.A. 8-1568(b)(1)(E), the option within a means of the felony fleeing and eluding statute dependent on five or more moving violations.

ISSUES: (1) Admission of jail calls; (2) constitutionality of K.S.A. 8-1568(b)(1)(E) HELD: Court examined cases from other jurisdictions and concluded the seven-factor test for authenticating an audio recording outlined in State v. Williams, 235 Kan. 485 (1984), is no longer controlling in Kansas. Audio recordings qualify as writings under the Kansas Rules of Evidence. On record in this case, and under current Rules and cases interpreting them, district judge did not abuse his discretion by admitting the recorded calls as evidence. State proffered evidence upon which a reasonable juror could conclude that Jenkins made the recorded calls: strong circumstantial evidence that Jenkins was the caller by use of his unique PIN, supported by the content and timing of the calls.

Claim that the term “moving violations” in Kansas felony fleeing and eluding statute is unconstitutionally vague, which Jenkins raised first time on appeal, is considered, finding the statute is not unconstitutionally vague. Jenkins’ reliance on State v. Richardson, 290 Kan. 176 (2010), is criticized. Conduct underlying each of the moving violations used to convict Jenkins of fleeing and eluding and felony murder is clearly prohibited by Kansas law, and plain language of the definwww.ksbar.org | February 2020 65

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ing statutory and regulatory provisions is clear. Jenkins’ argument for application of the rule of lenity is rejected.

STATUTES: K.S.A. 2015 Supp. 8-234b(d), -249(b), -1568(b)(1)(B), -1568(b)(1)(C), -1568(b)(1)(D), –1568(b)(1) (E), -1568(b)(2), 66-1,108(f); K.S.A. 8-262, -1508(c), -1519, -1522(a), -1528(b), -1545, -1548, 60-401 et seq., 401(m), -404, -464, 66-1,108a CRIMINAL PROCEDURE—EVIDENCE—JUDGES— STATUTES—WITNESSES STATE V. LYMAN GEARY DISTRICT COURT—AFFIRMED NO. 114,312 —JANUARY 10, 2020

FACTS: Lyman was convicted of felony murder based on abuse of a child, abuse of a child by shaking, and aggravated battery. After Lyman filed his appeal, defense counsel was served with disclosure of potentially exculpatory evidence that prosecutor recalled seeing a family resembling Lyman and victim with his family in a store, and that the woman had acted aggressively toward one of the children. Lyman filed motion for new trial on this newly discovered evidence. He also requested a change of judge for post trial matters, alleging the judge had been sleeping during trial. District court held hearing and concluded the prosecutor’s recollection was not corroborated and too speculative to warrant a new trial.

On appeal Lyman claimed district court erred by: (1) denying the motion for new trial; (2) excluding Lyman’s proposed expert witness (Young) for failing to satisfy test under Daubert, (3) allowing State to admit photos as evidence of Lyman’s prior bad acts; (4) sleeping during the trial; and (5) prohibiting Lyman from introducing medical records that were subject to a written stipulation. He also claimed cumulative error denied him a fair trial.

ISSUES: (1) Motion for new trial; (2) expert witness; (3) evidence of prior bad acts; (4) judicial misconduct; (5) stipulated medical records; (6) cumulative error HELD: District court did not abuse its discretion by finding the newly discovered evidence was not of such materiality that it would likely produce a different result upon retrial. Lyman’s further argument for a Brady violation fails because the evidence was not credibly exculpatory or impeaching.

Extended discussion of “Young’s postulate,” an inferential test Young had developed and used to base all his testimony and opinions in this case. District court did not abuse its discretion by excluding Young’s testimony for failure to satisfy test in Daubert, finding Young’s inferential test was contrary to fundamental tenets of Kansas evidence law, Young’s opinions were developed for purposes of testifying for defendants charged with child abuse, and that another Kansas trial court had found Young was not credible and his medical testimony was not worthy of any belief. Court rejects Lyman’s invitation to separate Young’s opinions reached from using the inferential test from those that were not.

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Under facts in case, evidence documenting prior assault of a child sufficient to visibly distress him and leave bruises constitutes other crime evidence under K.S.A. 2018 Supp. 60-455.

For evidence so similar to medical observations and conclusions at issue it is reasonable to conclude the same individual committed both the prior acts and those claimed in this case.

It is relevant to show the defendant’s modus operandi, a disputed material fact, and is probative because it contradicts the defendant’s claim that previous health issues and not the defendant caused the child’s death. District court did not abuse its discretion in finding the probative value of this evidence outweighed its prejudicial effect.

Lyman’s motion for change of judge did not satisfy affidavit requirement in K.S.A. 20-4111d, and motion also fails on the merits.

Parties stipulated to the admissibility of medical records that form the basis of opinion of people for purposes of their direct and cross-examination. District court did not abuse its discretion by refusing to admit the medical records because the expert witness would not be testifying.

No errors support Lyman’s cumulative error claim.

STATUTES: K.S.A. 2018 Supp. 22-3501(1), 60-455, -455(a), -455(b), -456(b); K.S.A. 20-311d, -311d(b), 22-3501, 60-401(b), -455, -456(b) APPEALS—CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—JURY INSTRUCTIONS—STATUTES STATE V. PATTERSON JOHNSON DISTRICT COURT—AFFIRMED NO.118,180—JANUARY 10, 2020

FACTS: Patterson was convicted of crimes arising from an armed robbery in which a victim was killed by an accomplice. On appeal he claimed: (1) his felony-murder conviction violated due process because a jury was not required to determine he possessed a particular criminal mental state; (2) district court’s instructions and prosecutor’s voir dire comments improperly prevented jury from exercising its nullification power; (3) his hard 25 life sentence for felony murder is disproportionate to his crime in violation of Kansas and United States constitutions; and (4) use of prior convictions to elevate his sentence violated Sixth Amendment rights under Apprendi.

ISSUES: (1) Felony-murder conviction; (2) instructing jury to apply the law; (3) prosecutor’s voir dire; (4) hard 25 life sentence; (5) Apprendi challenge HELD: Constitutional challenge to felony-murder statute, raised by Patterson for first time on appeal, is considered. Felony-murder statute, K.S.A. 2018 Supp. 21-5402(a)(2), does not operate as an unconstitutional conclusive presumption that invades the jury’s province. Intent to kill is not an element of felony murder. The statute expressly requires proof the defendant engaged in dangerous, felonious conduct and

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that a death occurred as a result of that conduct. By codifying participation in the felony as a statutory alternative for the intent and premeditation otherwise required for a firstdegree murder conviction, the statute imposes a rule of law. It does not remove from jury’s consideration an intent element required by a criminal statute.

No merit to Patterson’s claim that district court’s instruction undermined the jury’s nullification power. District court’s instruction that jury had a “duty” to follow the law as set out in the instructions and that it “should find the defendant guilty” if State proved all elements of the charged offenses, was legally correct.

No merit to Patterson’s claim of error in prosecutor’s voir dire comment. It is not a misstatement of law to tell the jury to follow the law as given in the instructions.

Patterson did not show why his case is an exception to the general rule that case-specific challenges to § 9 of Kansas Constitution may not be raised for first time appeal. And his claim that a hard 25 life sentence is unconstitutional for a class of offenders (19-year olds) given the nature of his offense (those convicted of felony murder for a killing committed by another), fails to frame a valid categorical challenge to Eighth Amendment. The hard 25 life sentence is not categorically disproportionate as applied to young adults convicted of felony murder. Patterson’s reliance on Graham v. Florida, 560 U.S. 48 (2010), is misplaced.

Patterson’s Apprendi claim has been repeatedly rejected and is summarily dismissed.

STATUTES: K.S.A. 2018 Supp. 21-5202, -5202(a), -5202(d), -5402, -5402(a), -5402(a)(1), -5402(a)(2), -5402(b), 22- 3601(b)(3), -3601(b)(4), K.S.A. 21-3201 (Ensley)

Kansas Court of Appeals Civil EMPLOYMENT—LEGISLATORS— VICARIOUS LIABILITY LONG V. HOUSER CHEROKEE DISTRICT COURT—AFFIRMED NO. 120,866—JANUARY 10, 2020

FACTS: In 2017, Houser was a state representative for the State of Kansas. His job duties required that he be in Topeka during the legislative session. The state provided Houser with a per diem for lodging and meals, plus travel expenses. After the Legislature recessed for a break, Houser spent the night in Topeka and then got in his personal vehicle to return home.

During the trip, Houser crossed the center line and hit Long’s car, injuring him. Long sued both Houser and the State. The State sought summary judgment, arguing that it was not liable for Long’s injuries because Houser was not acting within the scope of his employment while he was traveling home from Topeka. The district court agreed, and Long appealed.

ISSUE: (1) Whether Houser was acting within the scope of his employment at the time of the accident HELD: Vicarious liability is the idea that the losses caused by an employee’s tortious conduct are passed on to the employer as a cost of doing business. Vicarious liability only exists if the employee was acting within the scope of their employment at the time the tortious activity occurred. Although it has not been used in a tort context, the “going and coming rule” applies to third-party tort liability claims as a gauge to determine whether vicarious liability exists. The facts of the case make it clear that Houser was not acting within the

scope of his employment at the time of the accident. This is true even though the State reimbursed Houser for travel costs.

STATUTE: K.S.A. 2018 Supp. 75-3203(a), -3202(b), -3203(e), -6103(a) ATTORNEY PERFORMANCE—HABEAS CORPUS BAKER V. STATE LABETTE DISTRICT COURT—AFFIRMED NO. 118,695—DECEMBER 20, 2019

FACTS: Baker pled guilty to felony murder, child abuse, possession of marijuana, and obstruction of official duty.

Baker had originally been charged with aggravated criminal sodomy, a charge which could have resulted in a death penalty when combined with the murder charge, but it was dismissed under the plea agreement. At the sentencing hearing, defense counsel did not present any evidence regarding Baker’s mental health. Baker received a hard 20 sentence for the felony murder, plus an additional 147 months for the other convictions. All of these sentences were presumptive for Baker’s convictions, but Baker received the aggravated sentence rather than the standard sentence. Baker’s convictions were affirmed on direct appeal. He timely filed a K.S.A. 60-1507 motion, plus three amended motions, in which he claimed that trial counsel was ineffective for failing to ensure that his grid sentences were ordered to run concurrently and for failing to investigate his mental health issues and present mitigating evidence. The district court denied the motion after an evidentiary hearing, and Baker appeals.

ISSUES: (1) Timeliness of the K.S.A. 60-1507 motion; (2) merits of Baker’s motion www.ksbar.org | February 2020 67

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HELD: The State did not raise the timeliness issue before the district court. They waived any appellate argument by not arguing timeliness in district court. The panel assumes without deciding that trial counsel’s performance was deficient under the totality of the circumstances. The only issue to decide is whether trial counsel’s deficient performance was so prejudicial that Baker was harmed. The district court did not correctly apply the Strickland test and did not properly evaluate the evidence. But even when the correct test is used, the district court correctly determined that no prejudice resulted from trial counsel’s deficient performance.

DISSENT: (Leben, J.) Trial counsel made no argument for anything less than the maximum possible sentence. There was a great deal of evidence regarding Baker’s life experiences and mental health conditions, and that could have made a difference at sentencing. Trial counsel was prejudicially ineffective for not presenting that evidence at sentencing. He would remand this case for resentencing before a different judge.

STATUTES: K.S.A. 2018 Supp. 60-1507(f)(1); K.S.A. 601507

Criminal APPEALS—CONSTITUTIONAL LAW—CRIMINAL LAW— EVIDENCE—FOURTH AMENDMENT—MOTIONS STATE V. DAINO JOHNSON DISTRICT COURT—REVERSED AND REMANDED NO. 120,824—JANUARY 10, 2020

FACTS: Uniformed officers responded to report of marijuana odor coming from unit in apartment complex. Daino opened door 8-10 inches and officer asked if it was OK to step in to write ticket for marijuana. Daino did not verbally respond, but opened the door further and stood out of the way. Once officers discovered evidence of significant drug activity, Daino signed consent form for search of apartment but for roommate’s room. Drug charges filed. Daino filed motion to suppress, alleging illegal search in violation of Fourth Amendment. District court granted the motion, finding any reasonable person would have construed Daino’s response to indicate consent for officers to enter the apartment, but under Kansas law implied consent was not valid. State filed interlocutory appeal. On appeal Daino challenged sufficiency of the evidence of district court’s credibility finding regarding officer’s testimony.

ISSUES: (1) Cross-appeal; (2) consent to search HELD: Sole issue on appeal is whether Daino’s consent for officers to enter apartment and investigate was invalid because it was implied. Daino filed no cross-appeal from district court’s adverse ruling, thus cannot challenge the sufficiency of the evidence or the district court’s credibility finding.

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District court’s factual findings are supported by substantial competent evidence, but its legal conclusion that Kansas law requires express, verbal consent is erroneous. While it is well established law that mere acquiescence to a claim of lawful authority is inadequate to show voluntary consent, no Kansas Supreme Court case holds that consent must be verbal to be valid. Application of “mere acquiescence” rule by Court of Appeals panels, and subsequent Kansas Supreme Court cases, are examined and factually distinguished. Federal court cases upholding implied consent to enter a residence also are cited.

Here, uncontested facts show that Daino yielded right of way to officers by his nonverbal, affirmative communication.

Totality of circumstances shows that he unequivocally, specifically, freely, and intelligently consented to officers entering his residence to investigate smell of marijuana.

DISSENT (Buser, J.): Under totality of circumstances, would find Daino did not unequivocally, specifically, and freely and intelligently consent to officer’s entry into the apartment. Officer’s statements to Daino were misleading, and insufficiently informed Daino of officer’s purpose in seeking entry into the apartment or of Daino’s constitutional right to refuse entry. A reasonable person would understand that Daino was silently acquiescing to officer’s claim of lawful authority to enter the apartment because officer knew there was marijuana inside and was required to issue a citation.

Would affirm district court’s suppression of evidence due to Fourth Amendment violation.

STATUTES: K.S.A. 2018 Supp. 60- 2103(h); K.S.A. 215709(b)(1), 65-4105(d)(17), -4107(d)(1) CRIMINAL PROCEDURE—SENTENCES—STATUTES STATE V. GIBSON GEARY DISTRICT COURT—SENTENCE VACATED AND CASE REMANDED NO. 120,657—DECEMBER 20, 2019

FACTS: When Gibson was arrested on drug charges, he misidentified himself as his brother. The brother was then arrested for failure to show up for a hearing. Relevant to this appeal, Gibson was convicted of identity theft and perjury. Presumptive sentence was probation, but district court granted State’s motion for a dispositional-departure sentence of prison, finding the harm from Gibson’s crimes was greater than usual. Gibson appealed.

ISSUE: (1) Dispositional departure sentence HELD: Statutory-counterpart rule discussed. K.S.A. 2018 Supp. 21-6815 provides lists of mitigating and aggravating circumstances the sentencing court may consider in deciding whether to depart. Although each list is nonexclusive, if something is listed as a factor on one of the two lists, the absence of that factor on the counterpart list means that it may not be the basis for departure in that departure direction. Because less-than-typical harm is in list of mitigating

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factors but greater-than-typical harm is not included in list of aggravating factors, greater-than-typical harm may not be the basis for an upward-departure sentence. Sentence vacated and case remanded for resentencing.

STATUTES: K.S.A. 2018 Supp. 21-6815, -6815(c)(1)(E); K.S.A. 2005 Supp. 21-4716(c)(2)(D); K.S.A. 2003 Supp. 214716(c)(1)(B); K.S.A. 1997 Supp. 21-4716(b)(1)(E); K.S.A. 1994 Supp. 21-4716(b)(2)(A) CONSTITUTIONAL LAW—DUE PROCESS—CRIMINAL PROCEDURE—PROBATION—STATUTES STATE V. GONZALEZ SEDGWICK DISTRICT COURT—REMANDED WITH DIRECTIONS NO. 120,179—DECEMBER 27, 2019

FACTS: Following a hearing and determination of competency, Gonzalez convicted and sentenced to a 52-month prison term with dispositional departure to probation for 36 months. Some seven months later he was arrested for violating probation. Noting the statutory processes for competency evaluations do not explicitly apply to probation revocation proceedings, district court revoked probation without addressing competency concerns raised by appointed counsel.

Gonzalez appealed, claiming a constitutionally protected right to be mentally competent at his probation hearing.

ISSUE: (1) Probation revocation—constitutional due process HELD: Gonzalez’ Fourteenth Amendment claim was not waived by counsel’s assertion of rights notwithstanding her failure to mention “constitution” or “due process.” Competency for due process purposes in revoking probation, an issue not yet addressed by U.S. Supreme Court or Kansas Supreme Court, is examined. The State may not revoke probation of a convicted felon who is not mentally competent at the time of the revocation hearing. In this case, district court acknowledged there were legitimate reasons to believe Gonzalez may not have been competent. The absence of a statutory procedure for competency evaluations in criminal cases after defendants have been sentenced is not a barrier to district court’s inherent authority to order a competency evaluation as a means of extending constitutional due process to a probationer facing revocation. District court erred in revoking Gonzalez’ probation without determining he was mentally competent. On remand, district court should determine if a retrospective competency evaluation can be done.

If State agrees to forgo that accommodation, or district court determines such an evaluation is not feasible, then the revocation must be set aside with a new revocation proceeding and competency evaluations ordered if genuine competency issues remain. Due process requirements for statutory sanctions short of revocation are distinguished and not addressed.

STATUTES: K.S.A. 2018 Supp. 22-3303, -3716(b)(2), -3716(c) (1)(B), - 3716(c)(11)K.S.A. 22-3202, -3301 et seq., -3302(1)

APPEALS—CONTEMPT—CRIMINAL PROCEDURE— EVIDENCE—WITNESSES STATE V. LAMB (TOWNER) SHAWNEE DISTRICT COURT—AFFIRMED NO. 117,861—JANUARY 10, 2020

FACTS: Lamb charged with murder of victim in car Towner was driving, and with attempted murder of Towner. For Lamb’s preliminary hearing, Lamb and Towner had been transported to courthouse together and placed in same holding cell. When called to testify and identify Lamb as the shooter, Towner refused to testify. District court held Towner in contempt and ordered confinement. Charges against Lamb were dismissed. Towner appealed the court’s order of direct criminal contempt, arguing he was threatened into not testifying and district court erred by not holding an in camera hearing, without Lamb present, so Towner could explain why he was not testifying. State asserted the appeal was moot because Towner had completed his six-month sentence for contempt, and failed to preserve his issue for appeal.

ISSUES: (1) Mootness of the appeal; (2) preservation of issue on appeal; (3) contempt HELD: State v. Flanagan, 19 Kan. App. 2d 528 (1994), is distinguished as a contempt citation is not a criminal conviction and does not appear on a defendant’s criminal history.

But mootness doctrine does not prevent the appeal because issue may be subject to repetition.

Panel proceeds on the merits notwithstanding close call whether Towner properly preserved his claim that there was insufficient evidence to find him in contempt because judge disregarded information from prosecutor that Towner was under duress and did not provide Towner a safe environment to set forth his defense.

District court’s decision finding Towner in direct criminal contempt is affirmed. A judge has no duty to sua sponte hold an in camera hearing to determine if a witness is fearful to testify when the witness makes no such request. Towner failed to make a proffer of the evidence he wanted the court to consider, and the three federal cases he cited do not support his position. A judge has no independent responsibility to seek out evidence of duress from a recalcitrant witness.

STATUTES: K.S.A. 2018 Supp. 21-5107(a), -5206; K.S.A. 60-405 APPEALS—CRIMINAL PROCEDURE—JURISDICTION— MOTIONS—SENTENCES—STATUTES STATE V. MCCROY RENO DISTRICT COURT—APPEAL DISMISSED NO. 120,783—JANUARY 10, 2020

FACTS: District court sanctioned McCroy with second 180-day prison term after he violated terms of probation.

State did not file motion to correct the order and instead appealed, arguing the second sanction was an illegal sentence www.ksbar.org | February 2020 69

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because Kansas law only contemplates one 180-day sanction.

McCroy contends there is no jurisdiction to consider State’s appeal which was not authorized by K.S.A. 22-3602 or any other appellate jurisdiction statute.

ISSUE: (1) Appellate Jurisdiction HELD: K.S.A. 22-3504, governing post trial motions including motion to correct an illegal sentence, is not an appellate jurisdiction statute and does not vest an appellate court with jurisdiction to consider an appeal by the State solely on the claim that a sentence is illegal. Instead, an appellate court’s jurisdiction in a criminal case must arise from one of the limited procedural postures set forth in K.S.A. 22-3602.

Different conclusion summarily reached in State v. Scherzer, 254 Kan. 926 (1994), but the sweeping jurisdictional statement in Scherzer no longer reflects the state of Kansas law.

Appellate court’s jurisdiction is limited to those situations authorized by statute. State did not present its argument as a question reserved under K.S.A. 22-3602(b)(3), and panel makes no finding as to whether State’s general concerns regarding a second 180-day sanction could be raised in that context.

STATUTES: K.S.A. 2018 Supp. 21-6820, 22-3501(1), -3502, -3504(1), -3602(a), -3602(b), -3602(f), -3716; K.S.A. 22-3504, -3504(a), -3601, -3602, -3602(b), -3602(b)(3), -3603, 60-1507, -2101, -2101(a), -2101(b)

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CRIMINAL PROCEDURE—PROBATION—STATUTES STATE V. TEARNEY WYANDOTTE DISTRICT COURT—AFFIRMED NO. 120,340—DECEMBER 20, 2019

FACTS: In 2014, district court imposed prison term but granted dispositional departure for 36 months’ probation.

Probation revoked in 2016. In unpublished opinion, court of appeals reversed the revocation and remanded because district court erroneously believed Tearney had served two intermediate sanctions. While that appeal was pending, Legislature enacted the dispositional departure exception, K.S.A. 2017 Supp. 22-3716(c)(9)(B), on July 1, 2017. On remand, district court applied the new exception and again revoked probation. Tearney appealed, claiming the exception does not apply retroactively.

ISSUE: (1) Probation revocation—retroactive application of dispositional departure exception HELD: K.S.A. 2017 Supp. 22-3716(c)(9)(B) permits a district court to revoke a defendant’s probation without having imposed a graduated sanction if probation was originally granted as the result of a dispositional departure. This exception applies to probation violations which occur after July 1, 2013, even when those violations occurred before the dispositional departure exception took effect. Retroactive application of the exception does not result in manifest injustice.

Accordingly, the exception applies to Tearney’s 2016 probation violations even though her violations occurred before the exception took effect.

STATUTES: K.S.A. 2017 Supp. 22-3716(c)(9)(A), -3716(c) (9)(B), -3716(c)(12); K.S.A. 2014 Supp. 22-3716(c)

appellate practice reminders

Appellate Practice Reminders From the Appellate Court Clerk's Office

Have 2020 Vision This Year !

Many a major league pitcher has said of his fastball, “You can’t hit what you can’t see.” Zig Ziglar said, “You can’t hit a target you cannot see, and you cannot see a target you do not have.” The appellate courts strive to keep cases moving through the system and get them to disposition. Attorneys who have cases on appeal need to make sure the docket weeks of the Supreme Court and Court of Appeals are within their sights and on their calendars. The appellate courts have a limited number of dockets each year and while we may try to work around a conflict for you, the following weeks in 2020 should be given priority for the appellate courts if you have an appeal that’s ready for argument.

Supreme Court: January 27-31 March 23-26 April 6-8 [Travel Docket] May 4-8; September 14-18 October 14-16 [Travel Docket] October 26-29 December 14-18 Court of Appeals: January 14-15 February 11-12 March 17-18 April 14 May 12-13 June 9-10 July 14-15 August 11-12 September 15-16 October 13-14 November 17-18 So if your target is to hit the sandy beaches of Playa del Carmen next winter, make sure you remember to avoid the appellate court docket weeks. Your vacation will be way more relaxing.

For questions about these or other appellate procedures and practices, Call the Office of the Clerk of the Appellate Courts, (785) 296-3229 Douglas T. Shima, Clerk.

www.ksbar.org | February 2020 71

ADVERTISING DIRECTORY VENDORS & MEMBERS

IN-HOUSE ADS

ALPS................................................................... Pg. 5

2020 KBA Annual Meeting...........................Pg. 27, 56

Bretz and Young............................................. Pg. 38-39

2020 Awards of the KBA.................................. Pg. 9-13

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Advertise with Us................................................ Pg. 72

Cliff Cohen......................................................... Pg. 30

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KALAP............................................................... Pg. 55

LawPay.............................................Inside Front Cover

KBA Membership................................................. Pg. 8

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KLS Pro Bono..................................................... Pg. 55

Rebein Brothers................................................... Pg. 31

Lawyer Referral Service.....................Inside Back Cover

Shamberg, Johnson & Bergman.................. Back Cover

Mock Trial.......................................................... Pg. 14

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National Poetry Month....................................... Pg. 55

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Solo & Small Firm.............................................. Pg. 14 Write for the Journal........................................... Pg. 14

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The Journal of the Kansas Bar Association

Classified Advertisements

Positions Available Advocate – Disability Crime Victims Unit Help obtain justice for victims of crime with disabilities. Advocate sought

by Disability Rights Center of Kansas to advocate for crime victims with disabilities. 40 hour a week position, yearly pay is approx $32K, but depends on experience.

Paralegals encouraged to apply. Great benefits. Employer-paid BCBS health insurance, KPERS retirement, etc. Questions?

Need an alternative format? Contact DRC: 1-877-776-1541 for info@drckansas.org.

Get the full job description & application at www.drckansas.org/about-us/jobapp Attorney Position Available. Arn, Mullins, Unruh, Kuhn & Wilson LLP, established Wichita law firm seeks associate and/ or lateral hire. Minimum two (2) years’ experience in Civil, Family, Litigation and General Practice. Attractive benefits, including health insurance, 401(k), disability/life insurance. Please forward resume, introductory letter and writing sample(s) to: Kris J. Kuhn (kkuhn@arnmullins.com).

Attorney Position Available. Young, Bogle, McCausland, Wells & Blanchard, a downtown Wichita law firm seeks associate or lateral hire. At least three years’ experience in civil litigation/general practice and must be admitted to the Kansas Bar. Equal opportunity employer. Competitive benefits, including health insurance. Email resume, introductory letter, writing sample, and salary requirements to Paul McCausland, p.mccausland@youngboglelaw.com.

Crow & Associates, Leavenworth, We are expanding our 4-lawyer firm. Opportunity for attorneys in family law, personal injury or estate/probate. Send email to Mike Crow at mikecrow@crowlegal.com or call (913) 682-0166.

Evans & Dixon, LLC seeks to hire an attorney with strong transactional expertise for our Overland Park office. We offer a rewarding work environment with a commitment to creating long-term relationships with our clients by providing excellent service. Email cover letter and resume to lhauf-vitale@evans-dixon.com

INTRUST Bank N.A. seeks an individual that holds a law degree with emphasis in Estate Planning. Trust Advisor is responsible for the administration and growth of comprehensive, integrated, multigenerational high level trust and wealth accounts. Uses advanced knowledge to exercise judgment and perform responsibilities which have a significant effect on the bank. Establishes work processes for self and monitors progress to ensure completion of goals as defined by their manager. This level requires the Trust Advisor to be capable of administering multiple account relationships with revenue exceeding $1.5 Million. Apply at intrustbank.com/careers.

Overland Park/Corporate Woods Law Firm. Jones & McCoy, P.A. seeking experienced associate attorney with 3+ years of civil litigation experience in business, estates and trust, family law, personal injury and other civil matters. Must have Kansas and Missouri licenses. Great opportunity for the right person to learn and grow their practice. Please send cover letter and resume to brant@jones-mccoy.com.

Part-Time Legal Assistant. A private law firm in Topeka has an immediate opening for a qualified Legal Assistant processing collections. Experience in general office administration required and legal office experience is preferred. Only applicants meeting specific criteria will be considered; please contact for duties and requirements. Please send resume and cover letter for consideration to the attn. of Alisia at info@probascolaw.com or via fax (785) 233-2384.

Wanted. Lawyer with a minimum of 3 years’ experience practice in estate and business law with a desire to become the owner of a central Kansas firm that has a very predictable gross revenue. The firm limits its practice to estate planning, probate, trust settlement and business planning. Please send your resume to kslawyerrecruit2019@ gmail.com.

Wichita Law Firm Seeks Associate Attorney Downtown Wichita law firm seeks to hire an associate attorney to work on all aspects of family law cases. The associate may be given an opportunity to develop a practice outside of the family law area. Interested

candidates are asked to send their resume and cover letter to tlegrand@slwlc.com.

Workers Compensation Administrative Law Judge. The Kansas Department of Labor is accepting applications for a Workers Compensation Administrative Law Judge position in Topeka. Applicants are required to be an attorney regularly admitted to practice law in the State of Kansas, have at least 5 years’ experience as an attorney and must have at least one year of experience practicing law in the area of workers compensation. To apply, please go to www.jobs. ks.gov Job ID Number 193714.

Attorney Services Contract brief and motion writing; research. Experienced attorney (25+ yrs.), with superior writing skills, successful track record, and excellent work history (small and large firm), available to assist on a contract basis preparing dispositive motions, other motions, trial court and appellate briefs, pleadings, probate/estate planning documents; also available to assist with legal research. Quality work; flexible.

Experience includes litigation, will/trusts, probate, debt collection, bankruptcy, contracts, domestic. Contact Paula McMullen at paulaamcmullen@gmail.com, or (913) 940-4521 to discuss.

Contract brief and motion writing; research. Experienced attorney with superior writing skills, successful track record, and excellent work history (small and large firm), available to assist on a contract basis preparing dispositive motions, other motions, trial court and appellate briefs, pleadings, probate/estate planning documents; also available to assist with legal research.

Quality work; flexible. Experience includes litigation, wills/trusts, probate, debt collection, bankruptcy, contracts, domestic. Contact Paula McMullen at paulaamcmullen@ gmail.com, or (913) 940-4521 to discuss.

Contract brief writing. Former federal law clerk and Court of Appeals staff attorney available to handle appeals and motions.

Attorney has briefed numerous appeals in both the Kansas and federal appellate courts.

Contact me if you need a quality brief.

Michael Jilka, (785) 218-2999 or email mjilka@jilkalaw.com. www.ksbar.org | February 2020 73

classified advertisements

David P. Mudrick, Topeka, is now practicing as Mudrick Arbitration & Mediation, LLC • 785-554-1570 • dmmudrick@hotmail.com Mudrick is AV-rated with over 35 years’ experience in employment and labor law. He is approved by the State of Kansas as a Civil Mediator and Teacher Due Process Hearing Officer. Mudrick is past president of KBA Employment Law Section. Named 2019 Labor Law Management Topeka Lawyer of the year and 2020 Employment Law Management Topeka Lawyer of the Year. Selected for Best Lawyers in America in Labor Law Management, Labor and Employment Litigation.

Estate & trust litigation. Available to assist you in probate and trust litigation in Kansas, Missouri and other states. www. nicholsjilka.com.

QDRO Drafting. I am a Kansas attorney and former pension plan administrator with years of experience in employee benefit law. My services are available to draft your QDROs, communicate with the retirement plans, and assist with qualification of your DROs or other retirement plan matters. Let me help you and your client through this technically difficult process. For more information call Curtis G. Barnhill at (785) 8561628 or email cgb@barnhill-morse.law.

Security Expert Witness. Board Certified Protection Professional and former Senior Police Commander providing forensic consulting to both plaintiff and defense counsel in all areas/venues of security negligence. A comprehensive CV, impeccable reputation and both criminal and civil experience equate to expert litigation support.

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(786) 444-1109. expert@securedirection.net Social Security Disability Services. Your clients that are dealing with serious injuries or illness may have a claim for Social Security disability. We have lots of experience, get good results, and we are ready to help and to augment your reputation. If you have questions, let’s talk. Our practice is limited to Social Security disability. We can travel anywhere in Kansas, Missouri, Nebraska or Colorado. Contact: Pat Donahue at Western Law (785) 832-8521 or phd@wpa-legal.org.

Veterans Services. Do you want to better serve your veteran clients without going to the trouble of dealing with the VA? I am a VA-accredited attorney with extensive experience applying for various VA benefits, including Improved Pension. I regularly consult with attorneys (and their clients) about the various services attorneys can offer their clients to help qualify veterans and their families for various VA programs. As soon as a client is in position to qualify, I can further assist by handling the entire application to the VA for you. For more in74

The Journal of the Kansas Bar Association

formation about my various consultation and application services, please contact the Law Office of Scott W. Sexton P.A. at (785) 409-5228.

WANTED: Due to retirement, candidate needed for Sumner County Attorney. Experience preferred. Financial backing and community support is present. Contact Mike Brown at 316-777-1186 or elderlawks@gmail.com.

Office Space Available Manhattan Office Space for Rent. Located in the Colony Square office building in downtown Manhattan. One minute from the Riley County Courthouse. The available space consists of two offices and an area for a secretary/paralegal. Large reception area and kitchen. High speed internet. Open to either office sharing or “Of Counsel” arrangement. For more information, all 785-5399300 or email to office@jrlclaw.com Office Space Available on Ward Parkway in south Kansas City, Missouri. This is a great location for attorneys licensed in MO & KS. Large suite with 12 offices with two conferences rooms. There are 3 available offices. Full services provided, including phones answered, internet, supplies, and copier. Contact Kevin Hoop at 816-5199600 or khoop@kevinhooplaw.com.

Office for Lease, Corporate Woods. Approximately 300 sf office space available within a working law firm. Convenient location to meet with clients, with access to conference rooms if needed. Comes with all the amenities of a working law firm; witnesses, notaries, fax/copy machine, internet, phone, etc. On the top floor of a building with a fantastic view. Please contact Tim Winkler at 913-890-4428 or tim@ kcelderlaw.com.

Ottawa, KS Office Space for Rent- 950 sq. ft. for business office. Reception area, conference room, 4 private rooms, loft area for storage, kitchenette, back storage area, restroom. $600/month Please call (785) 893-0494 for more information. The location is 110 W 3rd St, Ottawa, Kansas. Pictures available upon request.

Overland Park- Offices for Rent. Law offices located in Old Downtown Overland Park, in remodeled historic building. Includes: free parking, reception area, kitchen, conference room, fax, scanner, copier, phones, voicemail, and high speed internet access. The offices are in walking distance of coffee shops, restaurants and retail stores.

More than fifteen highly respected attorneys in an office-sharing/networking arrangement. For more information contact James Shetlar at 913-648-3220.

Professional Office Space for lease. The available space consists of one to two offices

and an administrative staff bay, in a larger office building. No cost use of reception area, conference rooms, and high-speed internet.

Located in southwest Topeka. Competitive rent. For more information, call 785-2355367 or write Law Office, P.O. Box 67689, Topeka, KS 66667.

Seeking Office Space: Bilingual Immigration attorney with over 10 years of experience, looking to rent a conference room or office once or twice a month in Garden City, Kansas. No services needed other than a place to meet clients. We have served the immigrant community in Western Kansas for 9 years and have an ample client base.

Our office is a great source of referrals for a family or criminal attorney as we only practice immigration. Please reply to: erika.juradograham@gmail.com.

WYCO Office Suite Available at 134 N. Nettleton, Bonner Springs, KS 66012.

1100-2000 sf. Waiting area, receptionist area, break room, conference room, large and small offices, private parking, ADA Accessible. 1.25/sf/mo. Utilities included. For more information, call (913) 422-1620.

Other Due to retirement, will sell complete set of Kansas Reports and Kansas Appellate Reports. Price negotiable. Will deliver in KC area. Call 620-215-0236 or email: danielfmeara2@gmail.com One of a kind walnut 4x8 conference table/desk/Board of Directors table. Four drawers each side and embossed leather top.

Priced to sell $575 by retiring lawyer. Topeka location. 785.766.2084.

Retiring due to injuries. I have a complete set of Kansas Reports and Kansas Appellate Reports—$1000 OBO. Will deliver in the Topeka area. Contact Robert E. Keeshan, Esq., Topeka, KS (785) 554-6187.

Need clients?

Need increased

VISIBILITY?

Lawyer Referral Service [LRS] is a good source for a steady flow of persons seeking assistance with the “...kinds of cases I handle. The benefits of working with LRS far exceed the costs of enrollment. It is the most effective use of advertising budget I can imagine. ” ~ Joseph Seiwert, Snider & Seiwert LLC, Wichita

For more information about the KBA Lawyer Referral Service program, visit www.ksbar.org/LRS or call 785-234-5696

Your trusted legal source.

MEETS ABA STANDARDS FOR LAWYER REFERRAL

AMERICAN BAR ASSOCIATION

www.ksbar.org | February 2020LAWYER 75 THE RIGHT CALL FOR THE RIGHT

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A TRADITION OF SUCCESS

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the courtroom. For over 40 years, we have maximized the value of cases referred to our firm and we will continue to do so into the future. If you have a client with a serious injury or death, we will welcome a referral or opportunity to form a co-counsel relationship.

The choice of a lawyer is an important decision and should not be based solely on advertisements.