January/February 2021 Journal

Your Partner in the Profession | January/February 2021 • Vol. 90 • No. 1

Friends and Lovers: Conflicts of Interest and New ABA Opinion on Relationships Between Opposing Counsel

by J. Nick Badgerow P. 30

Navigating the Challenges of COVID-19 in the Workplace

by Isaac Keppler P. 38

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30 | Friends and Lovers: Conflicts of Interest and New ABA Opinion on Relationships Between Opposing Counsel

by J. Nick Badgerow 38 | Navigating the Challenges of COVID-19 in the Workplace

by Isaac Keppler

Special Features 54 | Notice to KBA Members Recent Changes to KBA Bylaws: Please Review

Regular Features 11 | From the President of the KBA

2021: You Took Your Sweet Time..... Charles E. Branson

14 | From the President of the KBF

KBF: Administering Scholarship Funds for Promising Law Students...............................................Scott Hill

18 | From the President of the YLS

YLS Institutes Its District Representative Initiative: Reaching Lawyers in Their First Ten Years of Practice ..................................................Kate Marples Simpson

21 | A Nostalgic Touch of Humor

Allow Me to Introduce a New Word to Your Vocabulary................................. Matt Keenan

23 | Substance and Style

Meet the New Citation Manuals: The Twenty-First Edition of the Bluebook and the Seventh Edition of the ALWD Guide............................ Jeffrey D. Jackson

47 | The Diversity Corner A Brief Survey of Diversity in the Western Kansas Bar: Where Are We and Where Do We Go from Here?...................................................... Etta Walker 52 | Law Students’ Corner Washburn University School of Law Intellectual Property: Always Around Us, but Rarely a Focal Point.............................Paige Reese

56 | Members in the News 58 | Obituaries 67 | Appellate Decisions 79 | Appellate Practice Reminders........... Doug Shima 80 | Advertising Directory 81 | Classified Advertisements

7 | Law Practice Management Tips and Tricks 2 Ghosts of the Past: Ethics Delays..... Larry Zimmerman

www.ksbar.org | January/February 2021 3

THE

JOURNAL

OF THE KANSAS BAR ASSOCIATION

2020-21

Journal Board of Editors Professor 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 Kate Duncan Butler (Lawrence), kbutler@barberemerson.com Boyd A. Byers (Wichita), bbyers@foulston.com Sarah Fertig, sarah.fertig@ks.gov Connie S. Hamilton (Manhattan), jcham999@gmail.com Lauren G. Hughes (McPherson), lhughes@bwisecounsel.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, Ret. (Wichita), bkybob73@gmail.com Professor John C. Peck (Lawrence), jpeck@ku.edu 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.net Sarah B. Shattuck (Ashland), bootes@ucom.net Michael Sichter (Kansas City), msichter@wrrsvlaw.com Richard D. Smith (Topeka), rich.smith@ag.ks.gov Katherine Tracy (Overland Park), kc@ksmolaw.com Hon. Sarah E. Warner (Lenexa), warners@kscourts.org Patti Van Slyke, Journal Editor & Staff Liaison, pvanslyke@ksbar.org Issaku Yamaashi (Overland Park), iyamaashi@foulston.com 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 th Journal Editor at editor@ksbar.org.

LaShea Johnson, graphic design & web development • ljohnson@ksbar.org The Journal of the Kansas Bar Association (ISSN 0022-8486) will publish combined issues throughout 2021 for a total of six issues this 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.

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 2020 Kansas Bar Association, Topeka, Kan. For display advertising information, contact: Bill Spilman at (877) 878-3260 toll-free, (309) 483-6467 or email bill@innovativemediasolutions.com For classified advertising information contact the Journal editor at (785) 2345696 or email editor@ksbar.org.

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, P.O. Box 751080, Topeka, KS 66675-1080.

4

The Journal of the Kansas Bar Association

Let your VOICE be KBA Officers & Board of Governors Heard!

2020-21

President Charles E. Branson, CBranson@ksbar.org President-elect Hon. Cheryl Whelan, cwhelan@ksbar.org

Vice President Nancy Morales Gonzalez, nancy.gonzalez@ssa.gov Secretary-Treasurer Laura Ice, lauraice@textronfinancial.com Immediate Past President Mira Mdivani, MMdivani@uslegalimmigration.com Young Lawyers Section President Katherine E. Marples Simpson, ksimspon@stevensbrand.com Immediate Past President Mitch E. Biebighauser, mitch_biebighauser@fd.org District 1 Michael J. Fleming, mike@kapkewillerth.com Katie A. McClaflin, kmcclaflin@mkmlawkc.com Katherine S. Clevenger, katherine@pcfamilylaw.com District 2 Bethany J. 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@cox.net District 6 Tish S. Morrical, tish.morrical@hamptonlaw.com District 7 William L. Townsley, III, wtownsley@fleeson.com Hon. Jeffrey E. Goering, jgoering@dc18.org Megan S. Monsour, mmonsour@hinklaw.com District 8 Dell Marie Shanahan Swearer, dell@hutchcf.org District 9 Aaron L. Kite, aaron@kitelawfirm.com District 10 Gregory A. Schwartz, gaschwartz@schwartzparklaw.com District 11 Candice A. Alcaraz, calcaraz@wycokck.org District 12 Alexander P. Aguilera, alex.aguilera@leggett.com Bruce A. Ney, bn7429@att.com John M. Shoemaker, john.shoemaker@butlersnow.com At-Large Governor Eunice Peters, peterse28@gmail.com KDJA Representative Hon. Bruce T. Gatterman, 24thcj@pawnee.kscoxmail.com KBA Delegate to ABA House Natalie G. Haag, nhaag@capfed.com Eric K. Rosenblad, rosenblade@klsinc.org ABA State Delegate Rachael K. Pirner, rkpirner@twgfirm.com YL Delegate to ABA House Joslyn Kusiak, jkusiak@kellykusiaklaw.com KBF Representative Scott M. Hill, hill@hitefanning.com Executive Director of the KBA/KBF Stacey Harden, sharden@ksbar.org

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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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 online at

6

www.ksbar.org/awards

The Journal of the Kansas Bar Association

2021 Awards of the KBA

The KBA Awards Committee is seeking nominations for award recipients for the 2021 KBA Awards. These awards will be presented at the KBA Annual Meeting. 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 5.

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 nonspecialized, 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 one year.

Page 2 Awards of the Kansas Bar Association (Con’t.)

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, a 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.

Page 3 Awards of the Kansas Bar Association (Con’t.)

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 5, 2021, to: Deana Mead at dmead@ksbar.org Or KBA Awards Committee Attn: Deana Mead PO Box 751080 Topeka, KS 66675-1080

from the kba president

2021: You took your sweet time

by Charles E. Branson KBA President, 2020-2021

W

elcome 2021. You sure took your sweet time getting here. I realize 2020 actually only had one more day in the year, but dang, it seemed really long. In my household, April felt like it lasted at least six months. Sure, between quarantine and stay at home recommendations, it was fun trying out all of the recipes we did not have time to get to in the past. We actually added some new standards to our monthly menu. There were a few projects around the house that actually got completed. And yes, there was a point in time where I thought I had actually finished Netflix.

2021 is finally here, and we have said good riddance to 2020. Robert Burn’s traditional ‘Auld Lang Syne’ has been sung and maybe you enjoyed your black-eyed peas on New Year’s Day for luck.

Odds are you are one of the millions of Americans that set out your new year’s resolutions. According to finders.com1 over 188 million adult Americans —74 percent of the population—will determine to make a life change or set a personal goal this year.

However you started 2021, I am sure—like most everyone else in the world—you are hopeful the New Year will bring relief from a worldwide pandemic. There are promising vaccines in place and the world is set to discover what the new

normal will be like. You are probably also hopeful that work, and if you are a parent—schools—return to a more normal routine.

I, for one, have never been very good about keeping my resolutions after the New Year. Maybe my goals were too lofty, or more likely, my resolve was not as strong as it could have been. For whatever reason, I typically stop thinking about those resolutions past February. That is not to say that I didn’t have great hopes for the coming year. There was always a milestone to achieve, a graduation or job change, or the end of or beginning of a new project.

This year is no different when it comes to my hopes.

But something has changed this year for me. I have a new sense of gratitude and gratefulness, and an appreciation for many things I have likely under-appreciated so many times.

With the chaos of 2020, I was able spend more time with my family. Time that was not just leisure in nature. We became work colleagues and office mates and study hall companions. I finally got a glimpse into their lives like I never had before. Our time together gave me a better understanding of the woman I married and the children we raised. Despite the trying times and the disrupted routines, I will cherish those moments. www.ksbar.org | January/February 2021 11

from the kba president

Likewise, 2020 also gave me a great opportunity to realize the importance of the friendships I had built over the years.

I spent more time checking in with people just to see how they were doing and had many check in on me also. It was very reassuring to have people reach out, not to see what the weekend plans were, but to just talk and to listen.

Finally, I have a new appreciation for the associations in life, especially, the Kansas Bar Association. The past year challenged every one of the associations to which I belong to be nimble and focus on core services. Each faced its own unique challenges. But I realized that those associations I had joined over the years for various reasons had become immensely more valuable to me. For example, the KBA provided me almost instant access to programs that allowed me to be able to fulfill my continuing legal education requirements when some other alternatives had all but disappeared.

Further, I had access to my colleagues around the state to compare notes on how they were dealing with the challenges of closed courtrooms and disrupted clients. Never before have the basic benefits of belonging meant so much.

Despite the joyous arrival of the New Year, 2021 will undoubtedly present each of us with as many challenges as it wills relief from the headaches of 2020. Nevertheless, I will remain hopeful in the New Year and even more appreciative

of my family, friends and associations. Welcome 2021, and may the blessings of the New Year be generously bestowed on one and all! n About the Author Charles E. Branson is President of the Kansas Bar Association for 2020-2021. He is an attorney with Fisher, Patterson, Sayler and Smith in the firm’s Topeka office. Branson is the former Douglas County District Attorney and held office for 16 years. Prior to public service, Branson was in private practice in Lawrence; his practice focused on civil and criminal litigation.

A long-time active member of the KBA, Branson has served on the Executive Committee of the Board of Governors, has been the KBA Representative on the Board of Trustees of the Bar Foundation, and has also been a member of the KBA Bench-Bar Committee and the KBF Scholarship Committee. Charles and his wife Kathy have two children, Chance and Grace, and live in Lawrence.

CBranson@ksbar.org 1. New Year’s resolution statistics, How may American’s are due to achieve their “new year, new me” goals in 2021? Catherine Choi, finder.com December 4, 2020. https://www.finder.com/new-years-resolution-statistics.

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www.ksbar.org | January/February 2021 13

from the kansas bar foundation president

KBF: Administering scholarship funds for promising law students

by Scott Hill KBF President, 2020-2021

I

continue this series spotlighting some of the invaluable programs administered by the Kansas Bar Foundation (“KBF”). This month, we turn our focus to those not yet admitted to practice.

Each year, the KBF proudly administers nearly $20,000 or more of scholarships to area law students. With this year’s scholarships, awards vary from $500 to $5,000. Specific requirements are included within the various scholarships, but generally the scholarships focus on area law students and/or Kansas residents (largely Washburn and University of Kansas 2Ls and 3Ls).

• The Capitol Federal Foundation Diversity Scholarship promotes the practice of law in the state of Kansas by awarding scholarships to two 3L students, one from Washburn University and one from the University of Kansas. Applicants must exhibit exemplary leadership in promoting diversity and inclusion within their law school and/or broader legal community. Recipients

14

The Journal of the Kansas Bar Association

will be provided the opportunity to author an 850word article about diversity and inclusion matters in the legal profession and justice system to be published in the Diversity Corner for the Journal of the Kansas Bar Association. Recipients will be invited to serve on the KBA Diversity Committee.

• The Case, Moses & Zimmerman, P.A. Law Student Scholarship promotes the practice of law in the state of Kansas by awarding funds to a student who has demonstrated a bona fide intent to practice law in the state of Kansas. Applicants must exhibit professionalism and high character in their personal and professional lives as demonstrated in application materials.

The award will be based on student participation in law school, community activities, financial need, and academic achievement. Students of culturally diverse backgrounds are encouraged to apply.

from the kansas bar foundation president

• The Frank Rice Scholarship promotes the practice of law in the state of Kansas by awarding funds to a student admitted to attend or who is attending the University of Kansas School of Law or Washburn University School of Law. The scholarship is intended to help law students become lawyers in the mold of Frank Rice who was “among the finest…in the Bar. He was at the top of his class…and always applied the highest level of legal scholarship to any legal matter in which he was involved.”

• The Justice Alex M. Fromme Memorial Scholarship promotes the practice of law in the state of Kansas by presenting an award to a law student attending either the University of Kansas School of Law or Washburn University School of Law who is committed to practicing law in Kansas. An award will be based on merit and recommendations rather than financial need.

• The Hinkle Law Firm Scholarship promotes community service by making an award to a law student attending either the University of Kansas School of Law or Washburn University School of Law who has demonstrated a history of community involvement.

Application materials should demonstrate the applicant’s professionalism and high character in their personal and professional lives. The award will be based in large part upon the student’s merit or recommendation rather than financial need. Students of culturally diverse backgrounds are encouraged to apply.

• The Lathrop & Gage Student Scholarship promotes community service by making an award to a law student attending either the University of Kansas School of Law or Washburn University School of Law who has demonstrated a history of community involvement. Application materials should demonstrate the applicant’s professionalism and high character in their personal and professional lives. The award will be based in large part upon the student’s merit or recommendation rather than financial need. Students of culturally diverse backgrounds are encouraged to apply.

• The Maxine S. Thompson Memorial Scholarship promotes the practice of law in rural Kansas. Applicants must originally be from Kansas and attending either the University of Kansas School of Law or Washburn University School of Law. Additionally, applicants must be committed to practicing law in rural Kansas, preferably western Kansas. An award will be based on merit and recommendations rather than financial need.

• The Frank Norton Scholarship is available exclusively to Washburn law students in their second or third year of study who are NOT receiving any other scholarship support. The award will be based on financial need and merit.

• The John E. Shamberg Memorial Law Student Scholarship promotes the practice of plaintiff’s work as well as the practice of law in the state of Kansas by making an award to an applicant who exhibits professionalism and high character in their academic and personal life and has demonstrated participation in school and community activities. The award will be based in large part upon a student’s financial need. Students of culturally diverse backgrounds are encouraged to apply.

While applications were due prior to the publication of this article (generally December 31 of each year), the 2021 recipients will be announced in February 2021 and recognized at an event at the Robert L. Gernon Law Center in the spring.

We look forward to presenting those awardees to you.

This year, the KBF Board of Trustees, along with the Scholarship Committee, is focused on growing the scholarship program. We welcome your direct inquiry. Please contact your KBF President or the Executive Director to discuss opportunities. The KBF and the Scholarship Committee have worked diligently (largely under Amy Cline’s committee leadership) to develop guidelines for the development of endowed scholarships and a form Memorandum of Understanding related to proposed scholarship requirements. While many of the scholarships outlined above have many requirements in common, we encourage you to think outside the box and develop scholarship criteria that will best mold the next generation of lawyers.

For more information about these scholarships or for the many other programs administered by the KBF, please visit our website at www.ksbar.org/mpage/kbf. n

About the Author Scott Hill is a partner at Hite, Fanning & Honeyman L.L.P. He concentrates his practice in banking, business transactions, business litigation and real estate. Scott sits on his firm’s management committee and devotes substantial time to his firm’s management and marketing efforts. Raised in Independence, Kan., he graduated from Pittsburg State University and Washburn University School of Law. Scott earned his MBA at Washburn during law school. He is married to Jennifer Hill of McDonald, Tinker, and has two sons, ages 11 and 7. hill@hitefanning.com

www.ksbar.org | January/February 2021 15

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from the young lawyers section president

YLS Institutes its District Representative Initiative: Reaching Lawyers in Their First Ten Years of Practice

by Kate Marples Simpson YLS President, 2020-2021

T

he YLS Board of Directors enthusiastically announces the roll-out of its premier initiative for the 2020-2021 leadership year. Thanks to the Kansas Board of Governors, the YLS Board of Directors, and leading lawyers across the state nominating local leaders, the below-listed lawyers accepted positions in the first class of KBA YLS District Representatives. Our YLS District Representatives will encourage intrastate networking, help plan local events in their districts, provide insight into what the KBA and especially the YLS can do to better serve our members, and hopefully use their district representative experience to learn about the KBA and take on other KBA leadership roles as their careers progress.

These individuals are the first of 22 district representatives we will introduce you to over the next few months. Please reach out to your local district representative, thank them for their service and congratulate them for being a leader among their peers.

Kelsy Allison – Kelsy is a non-equity shareholder at McAnany, Van Cleave, and Phillips. Her practice is focused on representing the interests of employers and carriers in various workers compensation matters in Kansas, Missouri, Iowa, and Nebraska. Kelsy is the President of the Wyandotte County Bar Association. She obtained her Juris Doctor from Washburn University School of Law in 2013. She is an avid Sporting KC fan. She enjoys playing soccer, golf, and listening to podcasts.

Kelsy Allison 18

The Journal of the Kansas Bar Association

Danielle Atchison – Danielle practices corporate immigration law for Mdivani Corporate Immigration Law Firm.

Danielle is the lead attorney for Mdivani Pro Bono Project where she represents immigrant women and children survivors of domestic violence and other violent crimes. She trains advocates and attorneys at local domestic violence shelters and a larger statewide domestic violence association on how to gather evidence and triage these cases when the families come into shelter. Danielle is on the Young Lawyer Section Council for the Missouri Bar representing District 3. She is a board member on the Earl E. O’Connor Inn of Court. She is on the Board of the Johnson County Bar Association. She is also the Chair of Missouri Bar Advisory Committee on Civic Education, a graduate of Missouri Bar Leadership Academy, and a judge for Missouri Bar’s We The People program. Danielle is an Adjunct Professor of Law at the University of Missouri-Kansas City where she teaches global immigration work visas, immigration compliance, and relief for immigrant survivors of domestic violence. Danielle has also been a Jackson County CASA Volunteer since 2015.

Caroline Kastor – Caroline is an associate attorney at Thompson-Hall, P.A., in Lawrence, Kansas. Estate Planning, Trust and Estate Litigation, and Family Law are Caroline’s practice focuses. She is a member of the KBA, Judge Hugh Means Inn of Court, Douglas County Women Attorneys, and the Kansas Women Attorneys Association. She earned

Danielle Atchison

Caroline Kastor

from the young lawyers section president

her J.D. at the University of Kansas in May 2020. While in law school at the University of Kansas, Caroline worked as a graduate assistant at Kansas Athletics, an online lecturer for the University of Kansas, and as a law clerk during the summers. As a law student, Caroline was asked to be a panelist at the 32nd Annual Media and the Law Seminar in Kansas City featuring, Calling Constitutional Balls and Strikes: Athletes’ Free-Speech Rights in an Era of High Profile Political Protests.

Although born and raised in Kansas, to Caroline, Kansas is more than home. She obtained all of her degrees from the University of Kansas, where she was a student-athlete on the soccer team, played professional soccer for the Kansas City Blues, and presently resides in Lawrence with her family.

Molly Bailly – Molly graduated from Washburn University with an Elementary Education degree. She taught fourth and fifth grades in the Seaman School District before deciding to trade her role as teacher for the role of student and attended Washburn University School of Law. During her time in law school, she worked a number of jobs including the Kansas Association of School Boards (KASB) and the Kansas Department of Aging and Disability Services (KDADS) where she gained hands-on experience with issues of interest to her. Molly’s focus on helping and educating others underlies her focus in estate planning and elder law, as well as real estate and business law. After graduating and being admitted to the Kansas Bar, Molly joined the law firm of Watkins Calcara, CHTD. in Great Bend, Kansas, where she grew up. Her focus of practice includes estate planning, trust formation, probate matters, and real estate law.

Paige Bangerter – Born and raised in Dodge City, Kansas, Paige graduated from Dodge City High School, attended Dodge City Community College, and studied Political Science at Wheaton College, near Chicago, Illinois. After graduating with honors, she attended the Kansas University School of Law, finishing in December 2019. After passing the bar exam, Paige decided that in the midst of a global pandemic would be a good time to start her own law firm. She formed PAB Legal, P.A. in April of 2020 and has been practicing criminal defense, juvenile defense, and serving as a representative for parents and children in CINC cases in the 16th Judicial District. Paige also serves on the board of Santa Fe

Molly Bailly

Paige Bangerter

Trails Community Corrections in Dodge City, and Perfect Fit Foundation, a non-profit organization created to provide families and individuals with special needs the support and resources they need at home in Southwest Kansas. In her free time, Paige enjoys reading Jane Austen, J.R.R. Tolkien, J.K. Rowling, and other English Literature. She loves boating, taking walks with the family and their dogs, and working on improving her (very) poor golf game. She isn’t above bingewatching sitcoms and will go anywhere in the world to spend quality time with family and friends.

Ashley Comeau – Ashley joined Jeter Turner Sook Baxter LLP of Hays in 2019. Ashley’s practice encompasses a broad range of civil matters, including civil litigation, business and corporate law, real estate law, and estate planning. In 2020, she opened a branch office in Plainville, where she meets with clients by appointment. In addition to previous experience as corporate, in-house counsel, Ashley formerly worked as a civil litigation attorney at the Kansas City firm of Wagstaff & Cartmell, LLP. She is licensed to practice in the state and federal courts of Kansas. A 2011 graduate with honors from the Washburn University School of Law, Ashley is also a graduate of Fort Hays State University and grew up in western Kansas.

Ashley, husband Adam, and their son are home in Plainville, where they own and operate Brant’s Market, one of the oldest meat markets in the country.

Adam Dees – Adam Dees is an elder care attorney practicing in Hays, Kansas. He is a 2008 graduate of Southwestern College, Winfield, Kansas and a 2011 graduate of the University of Kansas, School of Law. Adam joined Clinkscales Elder Law Practice, P.A., team in 2017.

Adam’s practice focuses on preserving families’ resources and efficiently transferring those resources from one generation to the next. He is a member of the National Academy of Elder Law Attorneys and the Elder Law Section of the Kansas Bar Association. He is also a VA Accredited Attorney.

Adam presents seminars to the public about estate planning for families in all situations. He enjoys spending time with his spouse, Alyssa; their children, Rachel and Kay; their dog, Simon; and their foster dog, Bridgett. He also enjoys camping, sailing, and reading as much as possible.

Ashley Comeau

Adam Dees www.ksbar.org | January/February 2021 19

from the young lawyers section president

Joe Aker – Joe was born in Salina, Kansas and raised on his family’s diversified 5th generation farm just south of Abilene, Kansas. He attended Fort Hays State University, graduating with a B.S. in Agricultural Business and a B.S. in Agronomy in 2015. Joe then attended Washburn University School of Law, where he received his Juris Doctor in 2018. Upon graduating from law school, Joe returned to his hometown of Abilene where he started his own law practice and rejoined the family’s farming operation. In 2020, Joe joined the law firm of Hampton & Royce, L.C. in Salina, Kansas. Joe’s practice is committed to working with clients with agricultural or other business-related issues, including family-owned businesses and business, estate, and tax planning problems. His practice also focuses on real estate, contract preparation and negotiation, probate, and general litigation matters.

Jack Villamaria – John “Jack” Villamaria is a native of Pittsburg, Kansas where he attended Pittsburg State University, earning his B.B.A. in Business Management in 2016. He went on to earn his Juris Doctor from the University of Missouri-Kansas City School of Law in 2019. Upon passing the Bar Exam, Jack moved back to his hometown of Pittsburg, Kansas to begin his law practice alongside his father, Jim. His practice primarily consists of defending those accused of crimes and general civil litigation. In his free time, Jack enjoys playing golf, hanging out with friends, and cheering on his alma mater—THE Pitt State Gorillas. n

Joe Aker

Jack Villamaria

About the Author Kate Marples Simpson is an associate at Stevens & Brand, L.L.P., in Lawrence. She previously clerked for the Hon. Carlos Murguia of the United States District Court for the District of Kansas in Kansas City, Kan., and for the Hon. K. Gary Sebelius for the U.S. District Court in Topeka.

Kate graduated from KU Law. She is president of the Judge Hugh Means American Inn of Court, and a member of the KBA Board of Publishers.

In her free time, Kate enjoys gardening, hanging out with her husband Jon and their dog Scout, taking care of their 18 chickens, and ironman training.

KSimpson@stevensbrand.com

“ON DEMAND” CLE: www.ksbar.org/cle-on-demand Legislative & Caselaw Institute (8 cr.)

Brown Bag Ethics (2 cr.)

Expert Views on Hot US Patent Law Topics (2 cr.)

Plus Many More!

20

The Journal of the Kansas Bar Association

a nostalgic touch of humor

Allow me to introduce a new word to your vocabulary

by Matt Keenan

A

long time ago in a galaxy far away, parenting was very different.

Expecting mothers smoked and drank, delivered their babies while knocked out on painkillers, then drove around town with the new addition sitting on their lap with the window down. Breakfast was Captain Crunch or Quisp.

When nap time arrived, moms tossed their toddlers in cribs plastered with lead paint. Lunch was processed meats loaded with Mayo. Moms cooked dinner in a huge vat of grease.

What was ultimately was served was never fully identified.

When that kid was able to walk, he stepped out the front door and returned ten years later on a bike with a banana seat.

Everyone aged 50 and older knows this drill. Some lived it. I did.

Dads spanked. Moms spanked. The nuns who taught at St. Pat’s spanked. One time my older sister Kate claimed privi-

lege to spank. And if you were well behaved, in our house, one day you could hop on your bike with your kid brother on as a pump, and follow the mosquito truck around town and inhale DDT. It tasted like oil, in case you wondered.

In Great Bend, the largest homes in town belonged to the dentists. There were no orthodontists. Everyone had a chipped tooth, crooked, crowded teeth. Life went on.

Sure, the pendulum has swung to the other end of the spectrum. But this month’s column is not a commentary on today’s parenting. Neither is it the opportunity to tell us what we already know—2020 was an awful year.

Instead, the goal today is to introduce a new word in your vocabulary. A word you have never heard before and, God willing, you will not hear again.

The Rain Forest Jumperoo. Okay, three words. www.ksbar.org | January/February 2021 21

a nostalgic touch of humor

Fisher Price describes the Rain Forest Jumperoo (aka Migraine Maker) this way: • “Exciting lights, sounds and music reward your baby’s every jump”

• “Infant jumper with 360 degrees of play, including peek-a-boo tiger, bat-at monkey, rattle lizard, and more.”

• “An electronic toy at the front has motion, music and lights that can be activated by baby spinning a drum. Busy toys, including a bobble elephant and swinging monkey, captivate baby’s attention and keep him entertained.”

• “Music, lights and sounds reward baby’s jumping.”

At the front of the seat is a gadget the toddler can spin.

When spun, it makes noise, a combination of sounds—like you heard with Wiley Coyote and the Road Runner. Whistles, rattles—and the “boing” sound effect that my editor won’t let me explain further. Kids apparently love it.

The Wall Street Journal ran a story in April entitled “Put Down the Phone: 100 (Nonscreen) Activities to Occupy Your Kids in Quarantine.” It appeared on April 8 2020. It includes outdoor games and some indoor activities (treasure hunt, escape party).

Jumperoo didn’t make the cut. Neither did it make the children’s Holiday Gift Guide 2020.

The instructions say: • Never leave child unattended.

• Always keep child in view while in product.

The reviews were plentiful but because this article has a word limit, allow me to summarize that every review noted how great it was to leave the kid unattended.

The best review was this one: “The music feature is OK, there is a setting that makes a different animal noise each time your child bounces that gets really annoying because she jumps a lot really fast.”

But I’m coming around to Jumperoo. It’s great when I need to get on a long Zoom call in another room. n

If Chuckie Cheese and Ronald McDonald could have a baby, it would be the Jumperoo.

And yes, it presently sits in the far corner of our master bedroom, along with a playpen, and a couple other “toys” my wife ordered online in a hurry. Ten minutes later, the doorbell rang. They were sitting on our porch. The Readers Digest version of how these accessories came to be an essential part of our lives is that Lori and I offered day care to our five-monthold grandson on Tuesdays and Thursdays because day care is no place I want anyone named Keenan right now.

The Jumperoo is large. Some might say it’s huge. So big that once assembled, you cannot fit it through a doorway. I tried to count the moving parts and stopped at 20. The chair is spring loaded and decorated as a frog with oversized eyes obviously designed by someone who still has his Woodstock ticket stub. Floating above the seat are a “bird” and “frog” About the Author extended from flexible arms that invite pulling.

Matthew Keenan has practiced with Shook, The seat rotates. There are wheels to help him move all Hardy & Bacon LLP, Kansas City, Mo., since 1985. around the floor. There are toys at the 10, 2, 4 and 8 locations.

So if you are wondering what a peek-a-boo tiger, bat-at mkeenan@shb.com monkey and rattle lizard have to do with the real rainforest, forget Google. There are no answers.

If you have participated in the Bike Across Kansas, please e-mail me with details. mkeenan@shb.com 22

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substance and style

Meet the New Citation Manuals: The Twenty-First Edition of the Bluebook and the Seventh Edition of the ALWD Guide

by Jeffrey D. Jackson

O

n September 1, 2020, just in time for the new school year, the compilers at the Columbia Law Review, the Harvard Law Review, the University of Pennsylvania Law Review, and the Yale Law Journal released the Twenty-First Edition of The Bluebook: A Uniform System of Citation.1 Coupled with the coming release of the Seventh Edition of the ALWD Guide to Legal Citation2 this summer, this means that lawyers and law students alike will soon have two new shiny versions of citation guides to use.3 The best news is that both citation manuals will be consistent with each other. A citation should look the same no matter which manual the author uses. This is not coincidental, and is both good and bad. The ALWD Guide’s decision to conform to the Bluebook’s rules for citation reflects the judgment of its author and editors that there is a benefit to hav-

ing one comprehensive system of legal citation. On the other hand, the decision to conform also yokes the ALWD Guide to all the changes and vagaries that come with the publication of a new edition of the Bluebook, whether those changes make sense or not.

And there are always changes. Unless you spend a lot of time dwelling on citation minutiae, (Wait. You mean you don’t? Just me?) you might be surprised to learn that with each edition of the citation manuals, changes are made. Some of these changes are undeniably for the better. For example, the Twentieth Edition of the Bluebook got rid of the awkward “available at” in front of URL cites for parallel citations to documents available on the internet.4 This recognizes the ubiquity of the internet as a source for information that in previous years would have been obtained in print. www.ksbar.org | January/February 2021 23

substance and style

Occasionally, however, the changes introduced by the Bluebook alter the very fabric of legal citation itself. Okay, that sounds overly dramatic – but it’s true. Witness the furor over the Sixteenth Edition of the Bluebook, which changed the entire meaning of the “see” cite.5 (If you don’t know what I’m talking about, consider yourself lucky. I’ve included the story in the footnotes, but you don’t need to read it. Don’t worry.

It’s fixed now. It shouldn’t bother you again. . . unless you went to law school from 1996 to 2000, in which case you may still be confused about the “see” cite).

The good news with this new round is that, although there are “hundreds of edits” in the Twenty-First Edition of the Bluebook,6 none of them are likely to spark any sort of call for torches or pitchforks. Yes, some of the abbreviations have been added or changed. Some of these changes are useful: “artificial intelligence” now has an abbreviation, fittingly, “A.I.”7 Others seem designed simply to irritate. For example, “environmental” is now “Env’t” rather than the previous “Envtl.”8 This seems entirely unnecessary. It appears to be an attempt to reduce the number of abbreviations by making one serve duty for all forms of the root word, but it ends up just making the abbreviation harder to comprehend. (Although I have a sneaking suspicion that most practitioners won’t abbreviate the word at all: neither Westlaw or Lexis does, and neither does the Kansas Supreme Court.) The fact is, “environmental” has been “Envtl.” since its first appearance in the Twelfth Edition in 1976, and I’m not sure why it needs to be changed now.

One change that practitioners and judges might notice has to do with abbreviations for reporters. With almost all courts going to word count rather than page counts for filings, the Twenty-First Edition gives practitioners permission to “close up” reporter names.9 Thus, F. Supp. 2d, which would read as three words for word count software now can be F.Supp.2d, which is all one word. I’m a little agnostic about this new rule.

It does save me from having to explain to students why F.2d is closed while F. Supp. 2d isn’t, and why the Southern Reporter is So. 2d (two words) but the South Eastern Reporter is S.E.2d (one word). I’m skeptical, however, that it will make much difference in the word counts. If the reporter abbreviations are causing you to go over the word limit, you should probably think about being more concise in your arguments.

There is, however, one big change with the Twenty-First Edition, and it’s one that seems fairly obvious but at the same time represents what I think is a missed opportunity. Word of the coming change started trickling down among the citation-geeky law professorate (yes, that’s a thing) in the early spring. (Along with a thing called COVID-19 that we tragically probably paid less attention to at the time.) The rumor was that the Bluebook was going to do away with the date parenthetical for statutes currently in force. Everyone I talked to seemed to think that was a good idea. For a refresher, un24

The Journal of the Kansas Bar Association

der the pre-2020 Bluebook and ALWD rules, a cite to a statute required a date parenthetical referencing either the date on the spine of the book or the supplement, whichever was applicable.10 Unfortunately, book compilations of state statutes (and the official federal statutes) are currently in short supply, so that information was not readily available. It seems likely that most attorneys get their statutory information from some other source anyway, either a commercial source such as Lexis or Westlaw, or through an online version of the code published by the state. The citation manuals allow cites to those sources, but for Lexis and Westlaw an awkward parenthetical announcing currency is required: (through acts received during the 2020 Legislative Session), for example.11 It gets even harder when using an online code provided by the state itself. Although the citation manuals allow those to be cited as if they were the original print source so long as they are “[a]uthentic, official, or exact copies,”12 very few of them are so designated, and even those that are don’t always have the “official date” anywhere accessible. There is a rule to cite an unofficial online source, but it requires a year date as well, which doesn’t help.13 Alas, when the Bluebook arrived, the rule was much more limited than earlier reports had suggested. The new rule 12.3.2 (and its practitioner companion B12.1.1.) did do away with citing the date when citing to a statute currently in force, but only for federal statutes.14 State statutes still require a cite to a date.

I see this is a missed opportunity. There really isn’t a justification for state statutes currently in force to be treated differently than federal statutes. If anything, the dates of state statutes are harder to track down, and omitting them poses no greater danger that a wrong version of the statute will be cited. My hunch is that attorneys who cite state statutes are finding them on Lexis, Westlaw, or some other commercial database, or are using the online version the particular state publishes online.15 These tend to actually encourage less user error than when we all relied on the books. I would have liked to have seen both the Bluebook and the ALWD Manual endorse doing away with the date for all statutes currently in force, whether taken from a bound volume, supplement, commercial database, or state website.

The big strength of the new edition of the Bluebook, however, is in what it adds. This new edition does a decent job of adding new examples and sources for different kinds of electronic media. This is something that has been neglected in the past, and definitely welcome, given that technology has radically changed the sources from which lawyers get their information in just a few short years. If I have a complaint here, it’s that the Bluebook doesn’t go far enough in giving examples of how to cite from the new media. There are still too many things that have to be puzzled out from the language of the rules.

substance and style

Because of its mission to be consistent with the way citations are formed in the Bluebook, the newest ALWD Guide has all of the positives and negatives that I’ve identified above.

However, it does have one major advantage over the Bluebook that makes it a better citation manual.16 The ALWD Guide has always had better and more numerous examples than the Bluebook. However, the Seventh Edition turns this discrepancy way up, especially with regard to examples of how to cite to the newer media sources and electronically filed court documents. Its organization and presentation of these resources are also impressive. The examples are in easy-to-read type, with explanations and diagrams showing where to put spaces.

Nor does the ALWD Guide neglect traditional resources.

While the new bells and whistles are attractive, the Guide contains numerous examples of all the different types of traditional sources lawyers might use. The sheer number of examples and variety of sources means that the user will generally be able to find an example of the exact resource, rather than being left to figure it out from looking at the rule language.

So, let’s get to the bottom line: is there a reason to buy a new copy of either the Bluebook or the ALWD Guide, and if so, which one? Well, that depends. (See, I’m a law professor . . .) If you are a Bluebook purist (you know who you are: the people who feel about their ability to meticulously craft citations the same way some people feel about their ability to drive manual transmissions), then the Twenty-first Edition may be just the thing. It will feel very familiar, but with some snazzy new stuff. If you haven’t purchased a new copy since the Nineteenth Edition (or before), it’s worth your while to look into this one: the number of new resources for law in the last ten years is pretty voluminous, and figuring out how to cite them can be a headache without guidance.

If, on the other hand, you don’t have fond memories of the Bluebook, aren’t wedded to a particular citation resource, or are now suffering from some form of stress-induced breakout just from so much citation-talk, then you might want to take a look at the ALWD Guide. It’s ease of use and number of examples and illustrations, especially with regard to newer electronic sources, make constructing the correct citation easy.

All in all, both citation manuals provide good value. They address new resources that lawyers use, while at the same time managing (for the most part) not to make unnecessary changes to the citation system we know and love. On the one hand, this leads me to breathe a sigh of relief, in that I don’t have to explain to third year law students that the rules I taught them in the first year have changed. On the other, I can’t help but think that this might just be a minor lull before a major storm. As ways that attorneys access legal information evolve ever more rapidly, and the sources that provide it multiply in previously unsuspected ways, it becomes more and more untenable to hold to a system that, for the most part,

requires attorneys to identify their sources by citing volumes they will never open and pages that they will never read. It may be that judges and practitioners alike will soon have to get used to seeing citations in forms that look unusual. (I’m still not entirely comfortable with how a public domain citation from Oklahoma looks.)17 It will be interesting to see how the legal world adapts. n

About the Author Jeffrey D. Jackson is a professor of law at Washburn University School of Law, where he teaches Legal Analyses, Research and Writing, Constitutional Law, Constitutional History, and Comparative Constitutional Law. He received his B.B.A. in economics from Washburn University in 1989, his J.D. from Washburn Law in 1992, and his LL.M. in constitutional law from Georgetown University Law Center in 2003. While at Washburn, Jackson was assistant editor for the Washburn Law Journal and currently serves on the Kansas Judicial Council Death Penalty Advisory Committee. jeffrey.jackson@washburn.edu

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www.ksbar.org | January/February 2021 25

substance and style

1. The Bluebook: A Uniform System of Citation (Columbia Law Review Ass’n et al. eds., 21st ed. 2020) (hereafter, Bluebook, Twenty-First Edition).

2. Ass’n of Legal Writing Directors & Carolyn V. Williams, ALWD Guide to Legal Citation (7th ed. Forthcoming 2021).

3. Readers of my previous contributions to this column will note that I’m a strong proponent of the ALWD Guide, which does everything the Bluebook does, and presents it in an easier to understand and use format.

On the other hand, I’m also the publisher of a popular electronic teaching tool for the ALWD Guide, and thus might be a little biased. See Jeffrey D. Jackson, Interactive Citation Workbook for ALWD Guide to Legal Citation (2019 ed.)

4. See Bluebook, Twenty-First Edition Rule 18.2.1.

5. The Fifteenth Edition had directed the use of “see” as an introductory signal when “the proposition is not directly stated by the cited authority but obviously follows from it; there is an inferential step between the authority cited and the proposition it supports.” The Bluebook: A Uniform System of Citation R. 1.2(a) (Columbia Law Review Ass’n et al. eds., 15th ed. 1991). However, the Sixteenth Edition changed the definition, and directed that “see” should be used when “[c]ited authority directly states or clearly supports the proposition.” The Bluebook: A Uniform System of Citation R. 1.2(a) at 22. (Columbia Law Review Ass’n et al. eds., 16th ed.

1996).

The compilers gave no explanation for this change, beyond stating that “[t]he number of signals has been reduced and the distinction between signals have been simplified.” See id. at v. They did not seem to realize that in “simplifying” things, they had actually caused a major change. Under their new system, anything other than a direct quote or a direct cite to the name of a case would require a “see” cite, notwithstanding the previous 50-plus years of prior practice. As Professor Darby Dickerson pointed out in her review of the change “Changing what the signals mean effectively changes the substance of our common law.” Darby Dickerson, An UnUniform System of Citation: Surviving with the New Bluebook, 26 Stetson L. Rev. 53, 69 (1996).

Reaction to this change was swift. The American Association of Law Schools issued a resolution calling the change “misguided” and urging

26

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the restoration of the previous rule. Ass’n of Am. Law Sch., Resolution Concerning Promulgation of Rules of Citation (Jan. 4, 1997); see Eric Shimamoto, Comment: To Take Arms Against a See of Trouble: Legal Citation and the Reassertion of Hierarchy, 73 UMKC L. Rev. 443, 453-54 (2004) (chronicling the controversy). For a more humorous take on the controversy, see Alex Glashausser, Citation and Representation, 55 Vand.

L. Rev. 59, 67-74 (2002) (comparing the change to the Stamp Act which sparked the Revolutionary War). A group of law professors immediately began plans for a competing instruction manual that would become the ALWD Guide. In the Seventeenth Edition, the compilers of the Bluebook contritely rescinded the change and reintroduced the old rule. See The Bluebook: A Uniform System of Citation R. 1.2(a) at 3, 22. (Columbia Law Review Ass’n et al. eds., 17th ed. 2000) at 3, 22.

6. Bluebook, Twenty-First Edition, supra note 1 at VII. 7. Id. at 304 (T6).

8. Id. at 305.

9. Id. at 9.

10. See, e.g. The Bluebook: A Uniform System of Citation R. 12.3.2 at 124-25 (Columbia Law Review Ass’n et al. eds., 20th ed. 2015); Ass’n of Legal Writing Directors & Coleen M. Barger, ALWD Guide to Legal Citation Rule 14.2(f ) (6th ed. 2017) (hereafter ALWD Guide, Sixth Edition).

11. Bluebook, Twenty-First Edition, supra note 1, Rule 12.5(a); ALWD Guide, Sixth Edition, supra note 10, Rule 14.2(f ).

12. Bluebook, Twenty-First Edition, supra note 1, Rule 12.5(b); ALWD Guide, Sixth Edition, supra note 10, Rule 14.2(f ).

13. Bluebook, Twenty-First Edition, supra note 1, Rule 18.2.2; ALWD Guide, Sixth Edition, supra note 10, Rule 14.2(f ).

14. See Bluebook, Twenty-First Edition, supra note 1, Rule 12.3.2, Rule B12.1.1.

15. See, e.g. Kansas’s online version of Kansas Statutes Annotated (without the annotations), http://www.kslegislature.org/li/b2019_20/statute/.

16. Once again, you have every right to take what I say on this score with a grain of salt. See supra note 3.

17. I mean: 1999 OK 90, ¶. What the heck kind of citation is that?

law practice management tips and tricks

Ghosts of the Past: Ethics Delays

by Larry Zimmerman

I

posit that most lawyers have some case or conduct from our distant past that occasionally wounds us with the worry, “How bad did I screw that up?” Unfortunately, time cannot heal such wounds, as a recent Kansas ethics case demonstrates.

114-Year-Old Precedent

In re Murphy, No. 122,036 (2020) recounts a convoluted tale of lawyer misconduct cascading forth from a conflict of interest. The details of the misconduct are interesting but more so was the timeline. Specifically, Murphy’s misconduct occurred in 2004 but Murphy’s client did not file his ethics complaint until 2016—a twelve-year delay! (The complaint was filed on the eve of the complainant’s civil trial against Murphy and after numerous lawyers and judges had previously observed and commented on—but never reported— Murphy’s conduct.)

As it turns out, there is no statute of limitations for an ethics complaint in Kansas, and that has been the law here for 114 years. In re Elliott, 73 Kan. 151 (1906) is a delightfully colorful case wherein a disbarred attorney levies several charges against his former partner including drunkenness, forgery, conspiracy, blackmail, and attempted poisoning with whiskey and morphine.

Among those scurrilous charges was a complaint from a heated dispute with a judge some 13 years earlier. Elliott and a judge had quarreled over bond monies, prompting the judge to appoint a committee to charge Elliott. Ultimately, the case just dissolved upon Elliott’s rebuttal. The Court in Elliott then introduced a two-part analysis that is preserved 114 years later, indicating that delay in bringing an ethics complaint is relevant for the respondent as both a defense to the charges and as mitigation in determining discipline. (These two analyses get muddled into one in many subsequent cases, including Murphy, but they are really separate inquiries best kept separate.)

Delay as Defense While Elliott indicates there is no statute of limitations governing complaints of ethical misconduct, it does recognize staleness. The Court wrote that the discipline proceeding was a quasi-criminal action suggesting similar due process and evidentiary concerns. It also noted that the subsequent conduct of all the parties involved in the original dispute constituted an acquiescence that would cloud reconsideration so many years after the original dispute.

As noted in Murphy, the defensive value of significant delay has been clarified since Elliott in that “there must be a showwww.ksbar.org | January/February 2021 27

law practice management tips and tricks

ing or prejudice to the party asserting such delay as a defense” citing In re Carson, 252 Kan. 399 (1993). The Office of the Disciplinary Administrator appears to argue in Murphy that only delay caused by that office in prosecuting a complaint may be prejudicial to a respondent but that argument is not supported by prior cases and is rejected in Murphy. Death or other unavailability of witnesses and destruction or loss of evidence, for example, would all certainly be relevant though unrelated to delays in prosecution by the Office of the Disciplinary Administrator.

Delay as Mitigation Elliott also acknowledged the relevance of delay as mitigation of discipline. The Court frames ethics cases not as a dispute between the complainant and the respondent but as a balance between the protecting the public from harm and preserving the respondent’s livelihood and integrity. Today, some of that balancing effort has been codified within the ABA Standards for Imposing Lawyer Sanctions. Section 9.32(j) addresses delay in disciplinary proceedings, and 9.32(m) discusses remoteness of prior offenses. When the use of delay as a defense goes to the question of whether the Office of the Disciplinary Administrator can meet its clear and convincing burden of proof and whether the respondent was provided due process, use of delay as mitigation comes after that burden has been met and it has been determined a lawyer engaged in misconduct. The question then becomes how to best protect the public.

Because lawyer discipline is not a criminal prosecution, mere punishment is not the focus. Instead, Kansas has held that, “Disciplinary proceedings are for the protection and benefit of the public at large.” State v. Scott, 230 Kan. 564(1982) citing to State v. Callahan, 232 Kan. 136 (1982).

When there has been significant delay between misconduct and complaint, this protective purpose can be complicated.

For example, an attorney in his first year of practice who seriously botches his first case due to his incompetence may learn from his mistake and become an outstanding lawyer for the next 12 years. If the client from that first botched case files a complaint, what protections for the public can be sincerely implemented? (The client was not without remedy having had access, as did the client in Murphy, to civil claims.) The question is whether any further discipline genuinely protects the public. Delay certainly makes determining and assessing that more complicated and, perhaps, impossible, aside from a letter of caution saying, “Do not do again that which you have not done again.”

It is too easy to lose sleep and confidence over our mistakes of the past—especially knowing that there is no end to our accountability in this life. Nevertheless, lawyers can take some peace in knowing that 114-year-old case law still provides some protections. 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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ethics: conflicts of interest

FRIENDS AND LOVERS: CONFLICTS OF INTEREST AND NEW ABA OPINION ON RELATIONSHIPS BETWEEN OPPOSING COUNSEL

by J. Nick Badgerow

I. INTRODUCTION AND OVERVIEW As Society evolves (or devolves), relationships among people change. Lawyers are not immune from these changes. Thus, it is important continually to examine and evaluate the relationship which lawyers maintain between and among themselves, particularly as they relate to potential conflicts of interest with opposing counsel, in order best to protect clients’ interests. The paradox is that the closer one’s relationship to the lawyer on the other side, the more likely there is to be a conflict of interest which will affect the clients of both lawyers.

A recent opinion from the American Bar Association, Formal Opinion 494 (“Opinion”),1 addresses these issues. While providing little in the way of hard and fast rules, the Opinion raises questions and suggests remedies to be considered and 30

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applied when a lawyer finds himself/herself opposed by counsel on the other side with whom the lawyer has an intimate, close, or even passing relationship. The Opinion also provides the opportunity to review the basic rules and processes for considering and addressing concurrent conflicts of interest under the Kansas Rules of Professional Conduct (“KRPC”).2

II. CONCURRENT CONFLICTS OF INTEREST AND WAIVER A. Basic Principles The principles governing conflicts of interest with a current client are found in Rule 1.7(a), which provides as follows: (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

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(1) the representation of one client will be directly adverse to another client; or (2) there is a substantial risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.3 To summarize, one may not take on the representation of one current client if that representation is directly adverse to another current client, or where the representation will be materially limited by the lawyer’s responsibilities to another client, a former client, a third person, or the lawyer’s own interest. The Rule goes on to provide a limited exception, containing several specific exceptions: (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if each affected client gives informed consent, confirmed in writing, and:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law; and (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.4 Thus, in order for there to be an effective waiver, the following conditions must be must: 1. The proposed representation obviously does not involve assertion of a claim by the lawyer in the same litigation or proceeding in which the lawyer is representing the other client; 2. The lawyer has the actual belief that s/he will be able to provide competent and diligent representation to both clients; and 3. The lawyer had the reasonable belief that s/he will be able to provide competent and diligent representation to both clients; and 4. Each client gives informed consent; and 5. That informed consent is confirmed in writing.

Thus, absent a determination by the lawyer that the conflict is consentable and the grant of consent by the client, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated.

The client as to whom the representation is directly adverse is likely to feel betrayed, and the resulting damage to the client-lawyer relationship is likely to impair the lawyer’s ability to represent the client effectively. In ad

dition, the client on whose behalf the adverse representation is undertaken reasonably may fear that the lawyer will pursue that client’s case less effectively out of deference to the other client, i.e., that the representation may be materially limited by the lawyer’s interest in retaining the current client.5 What follows is an analysis of the steps which a lawyer must follow in order to analyze a conflict, determine whether it may be waived, and then the steps necessary to obtain a proper waiver.

B. Are They Both Clients?

The first consideration is whether the proposed representation of the proposed client will be directly adverse to another client. The rule precludes direct adversity to another “client.”

The attorney-client relationship is not dependent upon the payment of a fee, nor is a formal contract necessary to create the relationship. The contract may be implied from conduct of the parties. The employment is sufficiently established when it is shown that the advice and assistance of the client are sought and received in matters pertinent to his profession.6 C. Is the Representation Directly Adverse?

Once it is determined that both parties are “clients,” the next test is to determine whether the proposed representation is “directly adverse” to another client, or can reasonably be foreseen to become directly adverse. In some contexts, this is clear. For example, a lawsuit against a current client is “directly adverse,” as would be the conduct of negotiations for one client to purchase the assets or business of another client.

Representation of one spouse on a motion to increase child support in a divorce action where the lawyer represented the other spouse in the divorce would be directly adverse.

The justification for the rule is that the lawyer needs to give advice, to negotiate, and to advocate, for the benefit of one client, not splitting his/her loyalties – in fact or in the client’s eyes. The lawyer’s thoughts and efforts, and the transaction itself, need to be free from being clouded by the interests of another client. They need to proceed without the lawyer confronting a mental conflict of deciding whose interests to advocate, and without the specter of doubt on the part of either client as those whose interests are actually being served.

Thus, absent a determination by the lawyer that the conflict is consentable and the grant of informed consent by the client, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated. The client as to whom the representation is directly adverse is likely to feel betrayed, and the resulting damage to the client-lawyer relationship is likely www.ksbar.org | January/February 2021 31

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to impair the lawyer’s ability to represent the client effectively.

In addition, the client on whose behalf the adverse representation is undertaken reasonably may fear that the lawyer will pursue that client’s case less effectively out of deference to the other client, i.e., that the representation may be materially limited by the lawyer’s interest in retaining the current client.

A thoughtful consideration of the issue needs to be made, because it is likely that, if the lawyer decides that the representation is not “directly” adverse and proceeds with the representation without satisfying the other requirements of the Rule, the other client could make a sufficient objection, or take the other sufficient action, so as to require the lawyer to justify any failure to follow the Rule.

D. Does the Lawyer Actually and Reasonably Believe That the Relationship Will Not Be Materially Limited?

If the representation of one client would be directly adverse to another client, then the next step is for the lawyer to examine his relationship with the affected client. Would the relationship be affected by taking a case or matter directly adverse to that client? In order to proceed, the lawyer must have the actual belief that there is not “a substantial risk that the representation of” neither client will be materially limited by taking on the representation.7 Even where there is no direct adverseness, a conflict-ofinterest exists if there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests.[8] Material limitations can include any number of things, such as the confidence and cordiality of the relationship. It also includes the issue of whether the other client will feel chilled in his/her willingness to share confidential information with the lawyer—knowing that the lawyer has taken action adverse to the client, and might do so again in the future. Thirdly, it includes the appearance of impropriety, because each client must wonder whose interests are being advocated. Each client should be confident that his/her interests, rather than those of his/her opponent, are being served by the lawyer.

Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client... [A] conflict of interest exists if there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests...

The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer’s independent 32

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professional judgment in considering alternatives or foreclose a course of action that reasonably should be pursued on behalf of the client.]

These considerations must be kept in mind when evaluating one’s relationship with opposing counsel: will that relationship, whether it be intimate, close or just an acquaintance, “materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose a course of action that reasonably should be pursued on behalf of the client.”10 1. Subjective Belief. First, the belief must be actual, i.e. subjectively held in the mind of the lawyer. The lawyer must actually believe that s/he can and will represent both clients competently and diligently, and that other interests do not impose material limitations on that competent and diligent representation.

“Belief” or “Believes” denotes that the person involved actually supposed the fact in question to be true. A person’s belief may be inferred from the circumstances.11 2. Objective Belief. Additionally, the belief must be reasonable. This means that a reasonable third party, looking at the transaction or action taken by the lawyer, would conclude that the relationship with the other client would not be materially affected by the adverse representation. Such occurrences are rare.

This is an objective standard. As noted in the Comment, one must view the situation through the eyes of a “disinterested outsider.”

[W]hen a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client’s consent.

These conflicts are not waivable. For example, representing opposing parties in the same litigation matter would never be appropriate.13 And the problem is not limited to civil and criminal litigation, but extends to potential conflicts in all areas, such as business and real estate transactions, estate and probate matters, and investments. If the relationship with either client, i.e. zealous, independent, vigorous representation, would be affected because of the conflict, no amount of client consent will cure the conflict.

The critical questions are the likelihood that a conflict will eventuate and, if it does, whether it will materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.14

ethics: conflicts of interest

E. Have the Clients Consented After Consultation?

Even if the lawyer actually and reasonably believes that the relationship with either client will not be adversely affected by his representation of the other client adverse to the first client, both clients must still consent to the adverse representation.

1. There must be consultation with each client; 2. Each client’s consent must be knowingly given; and 3. The clients’ consent must be confirmed in writing.

This consultation should include a complete disclosure of the adverse nature of the representation and an understanding that, despite the lawyer’s loyalty to the client in other matters, he is loyal only to the other client in the matter at hand.

The definitions (“Terminology”) in the Model Rules detail the type of consultation which shall be provided, in order for the clients to give knowing consent: “Consult” or “Consultation” denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.15 This “consultation” requires the lawyer to disclose all the potential negative and positive outcomes and eventualities from proceeding in the face of the conflict, as well as the reasonably available alternatives to giving the consent, i.e. to find another lawyer.

Ordinarily, this will require communication that includes a disclosure of the facts and circumstances giving rise to the situation, any explanation reasonably necessary to inform the client or other person of the material advantages and disadvantages of the proposed course of conduct and a discussion of the client’s or other person’s options and alternatives. In some circumstances it may be appropriate for a lawyer to advise a client or other person to seek the advice of other counsel.16 While the information imparted will necessarily vary, depending on the situation, it is clear that the adverse representation must be disclosed, as well as the risks and advantages resulting from continued representation despite the conflict.

For example, in the case of In re Wilkinson,17 the lawyer was held to have improperly represented a client in the sale of another client’s property without full disclosure, because he did not inform the client of his intention to satisfy his fee claim against the other client from the proceeds of the sale.

This disclosure may require the imparting of confidential information from the other client, in order to explain the possible adversity or the ramifications of various potential results in the matter. In this situation, lawyers must be mindful of Rule 1.6, regarding confidentiality. If the other client does not consent to the release of confidential information to the

new client, then an adequate consultation cannot be conducted, and knowing consent cannot be obtained. As noted in the official Comments: [T]here may be circumstances where it is impossible to make the disclosure necessary to obtain consent. For example, when the lawyer represents different clients in related matters and one of the clients refuses to consent to the disclosure necessary to permit the other client to make an informed decision, the lawyer cannot properly ask the latter to consent.18 Therefore, express permission should be obtained from one client to disclose confidential information to the other client, in order to explain the potential for conflict and to obtain knowing consent.

Even if disclosure is allowed, Rule 1.6 will still apply. Care should be taken to protect communications from each client as confidential.

F. Is the Clients’ Consent “Confirmed in Writing”?

Having satisfied all the foregoing requirements, and obtained the clients’ consent, i.e. having waived the conflict after consultation, that waiver must then be “confirmed in writing.”19 Paragraph (b) requires the lawyer to obtain the informed consent of the client, confirmed in writing. Such a writing may consist of a document executed by the client or one that the lawyer promptly records and transmits to the client following an oral consent.20 The requirement of a written record of the clients’ consent is for the protection of the lawyer, in case memories “fade” after a bad result.

[T]he writing is required in order to impress upon clients the seriousness of the decision the client is being asked to make and to avoid disputes or ambiguities that might later occur in the absence of a writing.21 www.ksbar.org | January/February 2021 33

ethics: conflicts of interest

The writing need not be signed by the client, though that would certainly solidify the consent. It should, however, be sent at the time or soon after the consent is obtained.

“Confirmed in writing,” when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (f ) for the definition of “informed consent.” If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter.22 Having reviewed the basic concepts of concurrent conflicts and their waiver, obtained through informed consent, confirmed in writing, the focus now turns to the relationships between opposing counsel, and how those relationships potentially involve conflicts of interest.

III. WHY AVOID CONFLICTS—WHAT CAN HAPPEN? A. Conflicts Are Unethical The first reason to avoid unwaived or unwaivable conflicts of interest is that the Rules of Professional Conduct prohibit them. And it is every lawyer’s ethical duty to comply with those Rules.

Lawyers play a vital role in the preservation of society.

The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship.23 B. Breach of Ethics Rules Can Lead to Discipline The Rules of Professional Conduct carry the imprimatur of the Kansas Supreme Court, which enforces those Rules through its Disciplinary Administrator.24 Rule 8.4(a) makes it professional misconduct to “[v]iolate or attempt to violate the rules of professional conduct.”25 Supreme Court Rule 202 specifically holds that, “Acts or omissions by an attorney... which violate the attorney’s oath of office or the disciplinary rules of the Supreme Court shall constitute misconduct and shall be grounds for discipline.”26 For example, in In re Crandall,27 the respondent attorney was suspended six months for, inter alia, violating Rule 1.7 by maintaining a concurrent conflict of interest.

C. Conflicts of Interest Can Lead to Loss of Clients —and Loss of Fees Once a conflict of interest is discovered, the “new” client will wonder whether s/he has the undivided loyalty of the lawyer, and would likely seek counsel elsewhere. The lawyer 34

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collects no further fees from that client. And the “old” client would likely feel betrayed by the disloyalty, and thus decline to engage the lawyer any longer, thus leading to a loss of fees from that quarter as well.

D. Conflicts of Interest Can Lead to Disqualification Once a conflict of interest is brought up in litigation, motions often ensue, leading to expensive and time-consuming satellite litigation, diverting the attention of the parties from the real issues in the case. And if the conflict of interest be proven, disqualification of the offending lawyer often results 28—again with the concomitant loss of future fees, and most likely the disgorgement of fees earned before the disqualification.29 E. Disqualification Due to a Conflict of Interest also Can affect the Lawyer’s Good Name and Reputation among the Bench and Bar In Freeman v. Chicago Musical Instrument Co., the Court observed that “granting of a disqualification motion all too often impairs the reputation of the disqualified firm.”30 F. Conflicts of Interest Can Lead to Malpractice Claims Clients who are upset by an unwaived conflict of interest sometimes seek redress for disgorgement, or even damages resulting from the conflict by means of a legal malpractice claim.31

IV. RELATIONSHIPS WITH OPPOSING COUNSEL – ABA OPINION 494 A. Family Relationships As noted above, Rule 1.7(a) recognizes concurrent conflicts in the case of conflicts between the interests of the client and “a personal interest of the lawyer.”32 Thus, when a client seeks to retain the lawyer to represent her in the possible purchase of property in which the lawyer holds an interest, a concurrent conflict obviously arises.33 Perhaps the most obvious “personal interest” for a lawyer is, or should be, his/her relationship to close family members.

The Comments to Rule 1.7 anticipate this, by finding a conflict where a lawyer proposes to represent a client adverse to

ethics: conflicts of interest

a party represented by someone “closely related by blood or marriage.”34 The Comment proceeds to explain: Thus, a lawyer related to another lawyer, e.g., as parent, child, sibling or spouse, ordinarily may not represent a client in a matter where that lawyer is representing another party, unless each client gives informed consent.

The disqualification arising from a close family relationship is personal and ordinarily is not imputed to members of firms with whom the lawyers are associated.35 Clearly, however, this list—however specific it might be— does not cover all the potential relationships which one might have with opposing counsel, and which may materially limit the lawyer’s ability to represent his/her client zealously and vigorously. That is where the ABA’s recent opinion attempts to step in to fill the breach.

B. ABA Opinion 494 This Opinion, issued on July 29, 2020, “offers guidance on conflicts that may arise from personal relationships with opposing counsel that fall within the Rules but are not specifically addressed by the Comments.”36 The Opinion “sets out the framework for analysis and identifies three categories of potential relationships between opposing counsel,”37 viz: Intimate Relationships, Friendships (Close Friendships, Intermediate Friendships, and “Just Friends”), and mere Acquaintances. These categories will be discussed below.

1. Intimate Relationships. Even if not married, those who are engaged to be married, cohabiting, or in an exclusive intimate relationship “should be treated similarly to married couples for conflicts purposes.”38 According to Opinion 292, these lawyers must disclose their relationship to their clients and “ordinarily” may not proceed with the representation, absent informed consent from the clients, confirmed in writing, and only after assuring themselves, actually and reasonably, that the representation of neither client will be materially affected.39 No guidance is provided as to when informed consent, confirmed in writing would not be required in the “extraordinary” case of an intimate relationship between opposing counsel. Again, this falls to the good judgment of counsel, which likely would err on the side of seeking written, informed consent.

What about intimate but non-exclusive relationships?

The Opinion addresses this too: Opposing counsel who are in some type of intimate relationship, but are not exclusive, engaged to be married or cohabiting, must carefully consider whether the relationship creates a significant risk that the representation of either client will be materially limited by the

lawyers’ personal relationships. The prudent course would be to disclose to the affected clients and obtain their informed consent.40 Friendships. This category, in turn, is divided into three sub-components:

a. Close Friendships. “Close friendships with opposing counsel should be disclosed to each affected client and... ordinarily [require] informed consent.”41 Little guidance is provided as to when such disclosure should or should not be made and informed consent should or should not be obtained. Close friendships include those who:

• Exchange gifts at holidays and special occasions;

• Regularly socialize;

• Regularly communicate and coordinate activities

• Routinely spend time at each other’s homes;

• Vacation together with families;

• Share a mentor-protégé relationship; or

• Share confidences and intimate details of their lives.

b. Intermediate Friendships. Something less than “close friends,” but something more than “just friends” are “intermediate friends. These “might” require disclosure, but will not “ordinarily” require client consent. Intermediate friendships include those who:

• Once practiced law together and may periodically meet for a meal;

• Try to meet when they are in each other’s hometown; www.ksbar.org | January/February 2021 35

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• Were law school classmates or were colleagues years before; • May stay in touch through occasional correspondence, but do not regularly see one another.

In these circumstances, analysis is necessary to determine whether disclosure and consent are required: The analysis turns on the closeness of the friendship. If there is a significant risk that the representation of one or more clients will be materially limited by a lawyer’s relationships, the lawyers must disclose the relationship to each affected client and obtain that client’s informed consent, confirmed in writing, assuming the lawyers reasonably believe they will be able to provide competent and diligent representation to each affected client. If the lawyers cannot do so, one or both of the lawyers must decline or withdraw from the affected representations, consistent with Model Rule 1.16.42 c. Just Friends. If the relationship between opposing counsel is a friendship not rising to the levels described above, and if the lawyers conclude, actually and reasonably, that there will be no material deleterious effect on the representation of either client, then disclosure and consent are not required.43 2. Acquaintances. “Acquaintances are relationships that do not carry the familiarity, affinity or attachment of friendships... [as their] interactions are coincidental or relatively superficial.”44 There must be little difference between “just friends” and “acquaintances.” But, according to the Opinion, this latter group includes those who, by way of example: • Are members of the same place of worship, professional or civic organizations, or the like; • May see each other at gatherings, even frequently, without feeling a close personal bond; • Regularly meet at bar association or other business events; • Present continuing education programs together; • Serve on bar association committees or boards together, where their relationship is collegial but not necessarily “friendship.45 Lawyers who are acquaintances of opposing counsel need not disclose the relationship to clients, although

36

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the lawyer may choose to do so. Disclosure may be advisable to maintain good client relations. It may be helpful to inform a client that the lawyer has a professional connection with opposing counsel and then explain how that will not materially limit the lawyer’s objectivity but may, in fact, assist in the representation because the lawyers can work collegially.46 So, again, not only is little guidance provided, but the steps to be taken in such a case are left to generalities, and permissive, rather than mandatory, steps. So, the best step when in doubt, after evaluating the situation to be assured that one’s representation would not be negatively impacted by proceeding to represent a client adverse to a party represented by a friend or acquaintance, would be to proceed to make full disclosure to the client, and obtain the client’s informed consent, confirmed in writing.

V. CONCLUSION Lawyers are encouraged to be collegial and friendly, even in the face of bitter advocacy in court, in negotiations, or in other adversary interactions. As Shakespeare says: “And do as adversaries do in law, Strive mightily, but eat and drink as friends.”47 But, as lawyers form acquaintances, friendships, or even intimate relationships with other lawyers, they must consider the impact of those relationships on the lawyers duties’ of zealous advocacy48 on behalf of their clients. Opinion 494 sets out one method to evaluate this interplay among relationships, duty to clients, and conflicts of interest. n

About the Author J. Nick Badgerow is a trial-lawyer partner with Spencer Fane LLP in Overland Park, Kansas. For thirty years, he served as Chairman of the Johnson County Bar Ethics and Grievance Committee. He is Chairman of the KBA Ethics Advisory Opinion Committee; he was a member of the Kansas Judicial Council for 23 years, including Chairman of the Council’s Civil Code Advisory Committee and Antitrust Law Committee; he served as Chairman of the Kansas Ethics 2000 Commission and the Kansas Ethics 2020 Commission; and he was a member of the Kansas Supreme CourtKBA Joint Commission on Professionalism. For sixteen years, Nick was a member of the Kansas State Board of Discipline for Attorneys.

He is the Editor and a co-author of the KBA’s Ethics Handbook, Third Edition (2015). nbadgerow@spencerfane.com

ethics: conflicts of interest

1. ABA Formal Opinion 494 (July 29, 2020), link to pdf found at https://www.americanbar.org/news/abanews/aba-news-archives/2020/10/ aba-issues-new-guidance-for-lawyers-to-navigate-conflicts-based-/ 2. Rule 226, Rules of the Kansas Supreme Court.

3. Rule 1.7(a), KRPC. 4. Id. 5. Id., Comment 6.

6. In re. Adoption of Irons, 235 Kan. 540, 548, 684 P.2d 332 (1984), quoting 7 Am. Jur. 2d, Attorneys at Law §118, pp. 187 - 188.

7. Rule 1.7(a)(2), KRPC. 8. Rule 1.7, KRPC, Comment 8.

9. Id., Comments 1 and 8.

10. Id., Comment 4.

11. Rule 1.0(a), KRPC. 12. MODEL Rules of Professional Conduct, Rule 1.7, Comment 14.

13. See Rule 1.7(b)(3), KRPC. 14. Rule 1.7, KRPC, Comment 8.

15. Rule 1.0(c), KRPC. 16. Rule 1.0, KRPC, Comment 8.

17. In re Wilkinson, 242 Kan. 133, 744 P.2d 1214 (1987).

18. Rule 1.7, KRPC, Comment 19.

19. Rule 1.7(b)(4).

20. Id., Comment 20.

21. Id. 22. Rule 1.0(b), KRPC. 23. KRPC, Preamble and Scope, para. 13.

24. Rule 205(a), Rules of the Kansas Supreme Court.

25. Rule 8.4(a), KRPC. 26. Kansas Supreme Court Rule 202.

27. In re Crandall, 308 Kan. 1526, 1558, 430 P.3d 902 (2018). See also, In re Hodge, 307 Kan. 170, 204, 407 P.2d 613 (2017)(lawyer disbarred for, inter alia, violating Rule 1.7).

28. See,e.g., Petition of Hoang, 245 Kan. 560, 566, 781 P.2d 731 (1989).

29. See, e.g., Maritrans GP Inc. v. Pepper, Hamilton & Scheetz , 529 Pa. 241, 602 A.2d 1277 (1992); Ulico Cas. Co. v. Wilson, Elser. Moskowitz, Edelman & Dicker, 16 Misc.3d 1051, 1065 (NY Sup.Ct. 2007) (citing Feiger v. Iral Jewelry, 41 N.Y.2d 928, 928-29 (1977)).

30. Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 720 (7th Cir. 1982). See also, Duncan v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 646 F.2d 1020, 1025 n.6, 1027 (5th Cir.) (attorney is subjected to loss of both reputation and fees), cert. denied, 454 U.S. 895 (1981).

31. Zimmerman v. Brown, 49 Kan. App. 2d 143, 306 P.3d 306 (2013) (claim stated; summary judgment for attorney reversed).

32. Rule 1.7(a)(2), KRPC. 33. See e.g. Stewart Title of the Midwest v. Reece & Nichols Relators, 294 Kan. 553, 276 P.2d 188 (2012)(lawyer’s personal benefits clashed with client’s interest: unwaivable conflict of interest).

34. Rule 1.7, KRPC, Comment 11.

35. Id. (emphasis added). See also, Rule 1.8(i), KRPC: (i) A lawyer related to another lawyer as parent, child, sibling or spouse shall not represent a client in a representation directly adverse to a person who the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship.

36. ABA Formal Opinion 494 (July 29, 2020), link to pdf found at https://www.americanbar.org/news/abanews/aba-news-archives/2020/10/ aba-issues-new-guidance-for-lawyers-to-navigate-conflicts-based-/ [hereinafter “Opinion”].

37. Opinion.

38. Id. See also, e.g., Ariz. Ethics Op. 2001-12 (2001)(defense lawyer in romantic relationship with law enforcement officer who regularly investigates and charges lawyer’s clients must obtain client’s informed consent to represent client in case where officer is involved).

39. Opinion.

40. Id. (emphasis added).

41. Id. (emphasis added).

42. Id. 43. Id. 44. Id. 45. Id. 46. Id. (emphasis added).

47. William Shakespeare, The Taming of the Shrew, Act 1, Scene 2.

48. “A lawyer shall act with reasonable diligence and promptness in representing a client.” Rule 1.3, KRPC. Comment 1 explains that this includes “commitment . . . dedication . . . and . . . zeal in advocacy upon the client’s behalf.”

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www.ksbar.org | January/February 2021 37

Navigating the Challenges of COVID-19 in the Workplace

38

The Journal of the Kansas Bar Association

by Isaac Keppler

A

lmost overnight COVID-19 changed our world. In February 2020, most Kansans had never heard the term “social distancing.” Wearing a mask or face-covering when leaving the house was reality in other places but seemed unlikely here in Kansas.

By March 2020, our reality changed. In those early days, the death toll from a single COVID-19 outbreak was staggering and the first cases began popping up in Kansas.

President Trump declared a national state of emergency on March 13, 2020. On March 28, 2020, Governor Laura Kelly signed Executive Order No. 20-16, making Kansas the twenty-second state to establish a statewide stay-at-home order.

During those early months of 2020, our law firm fielded Coronavirus-related questions that were new and unique—questions about sick employees, essential workers who were afraid to come to work, screening for COVID-19, medical leave, working from home, caring for children, face coverings in the office, and a myriad of other concerns that many businesses and employees were facing for the first time. Many of those questions did not have obvious answers at the time.

Although much uncertainty remains, since the beginning of March 2020, the Kansas Legislature and United States Congress have passed legislation that helps define rights and obligations and provide support to businesses and individuals during this pandemic. The new legislation and existing guidance from prior pandemics together provide a framework to address COVID-19 issues in the workplace.

This article will focus on three laws that affect the Kansas workplace during the COVID-19 pandemic: 1) Kansas House Bill 2016; 2) The Families First Coronavirus Response Act; and 3) The impact of the “Direct Threat” analysis on rights and obligations under the ADA. KANSAS HOUSE BILL 20161 The Kansas Legislature convened a special legislative session to address COVID-19, passing House Bill 2016 on June 4, 2020. This bill is titled “An Act concerning governmental response to the 2020 COVID-19 pandemic in Kansas.” Governor Laura Kelly signed the bill on June 9, 2020 and it became effective immediately upon publication on June 10, 2020.2 Among the wide swath of issues addressed by House Bill 2016, the following provisions directly or indirectly affect the workplace: (a) limitations on the powers of the Governor and county officials under the Kansas Emergency Management Act (KEMA); (b) conditions for the closing of schools; (c) immunity for health care providers and protection from liability for persons conducting business during the COVID-19 state of emergency; and (d) operational framework and limitations for contact tracing.

A review of these provisions will allow Kansas lawyers to provide guidance to their clients on day-to-day operations, and insight regarding what might happen as the COVID-19 pandemic continues into winter and beyond.

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Limitations of the Governor’s Power to Declare Emergencies and to Order Closures (Section 5, Section 6, and Section 7) One of the themes of House Bill 2016 was to curtail the power of the Governor to act unilaterally in response to COVID-19, instead requiring the governor to obtain approval for significant or long-term emergency measures.

Section Five – Declaring COVID-19 Related Emergencies Section Five of House Bill 2016 ratifies the Governor’s previous state of emergency declarations, but prevents the Governor from proclaiming any new COVID-19-related state of disaster emergency during 2020 unless the Governor’s action is approved by affirmative vote of six of eight members of the State Finance Council.

Section Six – Limitations on Business Closures Similarly, under Section Six, the Governor is prohibited from ordering the closure of a business or temporary stoppage of commercial activity unless the Governor consults with the State Finance Council at least 24 hours prior to issuing the order to provide the Council information regarding the conditions making the order necessary.

Additionally, the Governor is prohibited from issuing any closure order for more than fifteen days without approval from the State Finance Council. If the Governor seeks to extend any closure order beyond fifteen days, she must apply to the State Finance Council to extend the order and obtain a vote of approval by six of the eight members for an extended period of time not more than thirty days. Section Six expires on January 26, 2021.

Section Seven – Limitations on School Closures Section Seven prohibits the Governor from issuing any executive order under the Kansas Emergency Management Act (“KEMA”) to close public or private schools unless 1) the Governor submits the proposed order to the State Board of Education, and 2) the State Board of Education approves the order through the adoption of a resolution by a majority of the members of the Board.

Together, these sections significantly limit the Governor’s authority to act in response to the COVID-19 pandemic and reflect the preference of the Kansas legislature to keep businesses and schools open despite the risks posed by the COVID-19 pandemic.

The Business Liability Protection Act—Sections 8-15 House Bill 2016 also creates a new law titled the Business Liability Protection Act (“BLPA”). The BLPA delivers broad immunity for healthcare providers and much more limited protection for employers and business owners for acts and omissions occurring during the COVID-19 state of emergency.

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Specifically, the BLPA provides that a healthcare provider3 is immune from civil liability for damages, administrative fines or penalties for acts, omissions, healthcare decisions, or the rendering of or the failure to render healthcare services, including services that are altered, delayed, or withheld as a direct response to any COVID-19 state of disaster emergency under KEMA. However, a healthcare provider will not be allowed immunity from civil liability if it is established that the healthcare provider’s act, omission or healthcare decision constituted gross negligence or willful, wanton or reckless conduct.

Importantly, immunity will not apply to healthcare services 1) that are not related to COVID-19 and 2) that have not been altered, delayed or withheld because of the COVID-19 public health emergency. This provision applies retroactively to claims that accrue on or after March 12, 2020 and which occur during the Governor’s state of emergency disaster declaration under KEMA. Business Liability Protection A person conducting business in Kansas, including the person’s agents and employees, shall be immune from liability in a civil action for a COVID-19 claim4 if such person was acting pursuant to and in substantial compliance with public health directives applicable to the activity giving rise to the claim. This provision retroactively applies to any claims where the cause of action accrued on or after March 12, 2020.

This section is not a “silver bullet” that will prevent all COVID-19 related claims. However, it establishes a clear affirmative defense and incentivizes businesses to establish a workplace protocol that complies with public health directives from the CDC and state and local agencies such as physical distancing, masks that cover the mouth and nose, enhanced hygiene and cleaning protocols, and screening procedures.

As drafted, the section expires on January 26, 2021, and it is unclear whether it will be extended further into 2021. This is an important deadline to monitor and discuss with clients.

covid-19 in the workplace

Adult Care Facilities House Bill 2016 also provides an affirmative defense for adult care facilities for COVID-19 related claims if the facility establishes that it was acting pursuant to and in substantial compliance with public health directives, and: • The claim was caused by the facility’s compliance with a statute or rule and regulation to reaccept a resident who has been removed from the facility for treatment of COVID-19; or • The facility treats a resident who has tested positive for COVID-19 in compliance with a statute or rule and regulation.

This provision also applies retroactively to March 12, 2020 and was set to expire at the termination of the state of disaster emergency declared by the Governor under KEMA. The provisions related to immunity for healthcare providers and affording an affirmative defense for adult care facilities apply retroactively to any cause of action accruing on or after March 12, 2020 and will remain in effect as long as Kansas remains under a COVID-19 state of disaster emergency declaration.

Limitations on Contact Tracing – Section 16 Most people are now familiar with the term “contact tracing.” According to the CDC, contact tracing involves working with a patient who has been diagnosed with an infectious disease, such as COVID-19, to identify contacts with people who may have been infected through exposure to the patient.

Contact tracing prevents further transmission by identifying and separating people who have or may have contracted COVID-19.5 As part of House Bill 2016, the Kansas Legislature passed the COVID-19 contact tracing privacy act (Privacy Act). The Privacy Act was recommended by Attorney General Derek Schmidt who described the goal of the statute “to protect citizens’ privacy and civil liberties during the COVID-19 era.”6 The Privacy Act prohibits any state or local official from conducting or authorizing contact tracing, except whenever the Secretary of the Kansas Department of Health and Environment (KDHE) or a local health officer determines contact tracing is necessary to perform a public health duty assigned by statute to the official. The Secretary or the local health officer may conduct or authorize contact tracing as provided for in this Act. The Privacy Act prohibits contact tracers from disclosing the identity of an infected person to a contact, and only specifically authorized data may be collected and only for the purpose of contact tracing.

Perhaps most important for the purpose of advising clients, participation in contact tracing is voluntary, not mandatory.

No infected person or person who had contact with an infected person may be compelled to participate in contact tracing.

Moreover, contact tracing may not be conducted using cell phone location data to track or identify persons’ movement.

Any contact or infected person who in good faith discloses information requested by the tracer under authority of the Privacy Act shall be immune from civil, criminal, and administrative liability for the disclosure. And, no person shall be subject to criminal, civil or administrative liability because the person fails or refuses to cooperate in contact tracing conducted under the Act. Furthermore, persons may bring a civil action to enjoin violations of the Act, and a knowing violation of this section is a class C nonperson misdemeanor.

With the Privacy Act, the Kansas legislature has taken the position that individual Kansans should decide how best to protect themselves and others during the COVID-19 pandemic, and that business and school closures are not favored as a method of controlling the spread of the disease.

THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT7 The Families First Coronavirus Response Act (“FFCRA”) was passed by Congress in early 2020 to help businesses and individuals weather the challenges posed by the COVID-19 pandemic. The FFCRA was signed into law on March 18, 2020, and became effective on April 1, 2020. Although broad in scope, the FFCRA left many of the specific details to the Department of Labor to implement Rules and Regulations. It is these regulations that fully define the rights and obligations under the FFCRA.8 The FFCRA has two significant components providing employee leave benefits during the pandemic: 1) Emergency Family and Medical Leave Expansion Act (EFMLEA); and 2) Emergency Paid Sick Leave Act (EPSLA).

The EFMLEA applies to employers with fewer than five hundred employees and to government employers. The benefits of the EFMLEA are available to employees who have been on the job for at least thirty of the previous sixty days, or who would otherwise qualify for FMLA leave.

Leave under the EFMLEA serves a narrow purpose. Generally, the EFMLEA allows an employee to take up to twelve weeks of leave if the employee is unable to work or telework due to a need for leave to care for a son or daughter under 18 years old, if the child’s school or place of care has been closed due to Corona-virus related concerns.9 The U.S. Department of Labor has recently clarified that leave under the EFMLEA may be used intermittently and an employee who is otherwise qualified, would be permitted to take leave on days that schools are “remote” or “online only.”10 Under the EFMLEA, the initial 10 days of leave may be www.ksbar.org | January/February 2021 41

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unpaid. However, employees can elect to substitute with any accrued paid leave and may also use leave available under the EPSLA as discussed below.

After an employee exhausts the initial 10 days of unpaid leave under EFMLEA, employers must provide up to 10 weeks of paid leave, at two-thirds the regular rate of pay, with a maximum cap of two hundred dollars per day and ten thousand dollars in the aggregate. This maximum rate of pay is reached when an employee has a salary of $78,000 per year.

The EPSLA also took effect on April 1, 2020, and was set to expire on December 31, 2020, unless Congress acted to extend the law.

Like the EFMLEA, the EPLSA applied to private employers with fewer than five hundred employees and applied to public employers with more than one employee.

However, there is an important distinction regarding employee eligibility. Leave under the EPSLA was available to employees immediately regardless of time on the job whereas leave under EFMLEA was only available to employees who have been on the job for at least thirty days.

Unlike the narrow scope of leave under the EFMLEA, paid sick leave under EPSLA is available to employees for a variety of reasons. Employers are required to provide paid sick leave under EPSLA if the employee is unable to work for any of the following reasons: 1) the employee is ordered to quarantine or isolate for COVID-19 exposure or diagnosis; 2) a health care provider advises the employee to selfquarantine for COVID-19 exposure, symptoms, or diagnosis; 3) the employee has symptoms of COVID-19 and is seeking a diagnosis; 4) the employee is caring for someone in categories 1-3, above; 5) the employee is caring for a son or daughter because school is closed due to COVID-19; or 6) the employee is experiencing any other substantially similar condition identified by DHSS. Amount of Paid Leave Under EPSLA The limit of paid sick leave under EPSLA is 80 hours for full-time employees. Part-time employees are entitled to an amount of leave that is based on the average hours the employee works over a 2-week period. Additionally, the paid sick leave under EPSLA is in addition to any paid sick leave or other paid time off provided to the employee before the effective date of the FFCRA (April 1, 2020). This is important, because many employers provided paid leave to employees for COVID-19 related reasons prior to April 1, 2020 and may 42

The Journal of the Kansas Bar Association

incorrectly assume they have satisfied the paid leave requirement under EPSLA. Amount of Compensation Under EPSLA The rate of compensation under EPSLA varies depending on the reason for the leave. When employees take paid leave for reasons one, two, or three, above, they are entitled to their full rate of pay with a maximum compensation of up to $511 per day or a total aggregate amount of $5,110.

When employees take paid leave for reasons four, five, or six, above, the amount of pay is capped at two-thirds of the employees’ rate of compensation up to a maximum of $200 per day or a total aggregate amount of $2,000.

As a practical matter, employers should recognize that employees who need to care for children whose school or place of care is closed due to COVID-19 may obtain paid leave first under the EPSLA for up to eighty hours and then an additional ten weeks under the EFMLEA.11 Nuances and Common Issues Under the FFCRA Monitoring hires and layoffs for businesses near the 500-employee threshold Businesses close to the 500-employee threshold need to monitor hires and layoffs during the life of the FFCRA and plan ahead for compliance. This is because the number of employees (fewer than 500) is measured at the time of the proposed leave.

Therefore, a business with more than 500 employees in April 2020 might conclude that the FFCRA does not apply.

However, if the business later experiences layoffs that cause it to have fewer than 500 employees it will fall within the purview of the FFCRA and be required to provide leave and comply with other mandates of the FFCRA. Exemptions to FFCRA There are two exemptions to FFCRA compliance for employers that otherwise fall within its scope. These are the small business exemption and the healthcare and emergency worker exemption.

The small business exemption is narrow. It permits businesses with fifty or fewer employees to deny leave to a specific employee if granting the leave “would jeopardize the viability of the small business as a going concern.”12 A small business may make this determination if:

1. The provision of paid leave would result in the expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;

2. The absence of the employee or employees requesting leave creates a substantial risk to the financial health or operational capabilities of the small business be-

covid-19 in the workplace

ployers must post the FFCRA Notice of Rights.14 Critically, employers must also keep proper documentation if requested leave is granted or denied. At a minimum, every leave request should be documented with: • The name of your employee requesting leave; • The date(s) for which leave is requested;

cause of their specialized skills, knowledge of the business, or responsibilities; or 3. There are not sufficient workers who are able, willing, and qualified, and available to perform the labor or services provided by the employees requesting leave, and these labor or services are needed for the small business to operate at a minimal capacity.

Small businesses should be aware that there is no form or application process for this exemption. Employers are responsible for making the determination on their own but must retain sufficient documentation to establish the exemption in case it is later challenged.

The FFCRA also provides a healthcare provider exemption.

In contrast to the “under 50” exemption, this is quite broad.

The regulations allow businesses and government entities to exempt licensed medical doctors, nurse practitioners, or other healthcare providers who are permitted to issue a FMLA certification.

Additionally, employers may exempt employees who provide diagnostic services, preventive services, treatment, or other services that are part of patient care, such as nurses, nurse assistants, medical technicians, employees who directly assist in diagnostic, preventative, treatment or patient care services and, employees who do not provide direct healthcare services, but are integrated into and necessary for the provision of healthcare services.

However, employees may not be exempted simply because they work for employers that provide healthcare services.13 Although the healthcare and emergency worker exemption is extremely broad, the Department of Labor encourages employers to be judicious when determining whether to apply the exemption and reminds employers to consider the overall goal of preventing the spread of COVID-19.

Employers’ Obligations in Addition to Providing Leave Employers that are subject to the FFCRA must be aware of several obligations in addition to providing leave. First, em

• The reason for leave; and • A statement from the employee that he or she is unable to work because of the reason; • The name of the government entity that issued the quarantine order, if applicable; and • The name of the health care provider if the employee requests leave to self-quarantine based on the advice of a health care provider.

Additionally, if the leave is requested to care for a child, the employer must also document: • The name of the child being cared for; • The name of the school, or child care provider that has closed or become unavailable; and • A statement from the employee that no other suitable person is available to care for the child.

Tax Credit for Eligible Leave Under the FFCRA Eligible employers are entitled to refundable tax credits for “qualifying” leave wages. According to IRS Guidelines: Employers that pay qualified leave wages MAY retain the federal employment taxes equal to leave wages paid, plus health plan expenses and the amount of the employer’s share of Medicare tax imposed on those wages, rather than depositing them with the IRS.15 The tax credit includes the employee’s share of federal income tax, social security, and Medicare taxes and employer’s share of social security and Medicare taxes.

If these amounts that would be withheld are not sufficient to cover the Employer’s cost of qualified leave wages, employers will be able file a request for an advance payment from the IRS. As discussed above, documentation is critical. Employers must retain records and documentation supporting each employee’s leave to substantiate the employer’s claims for tax credits under the FFCRA. Penalties for Violations of the FFCRA There are significant penalties for violation of the FFCRA, which vary depending on whether the Employer violates the EPSLA or the EFMLEA. Under the EPSLA, employers are prohibited from dischargwww.ksbar.org | January/February 2021 43

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ing, disciplining, or discriminating against any employee because the employee took paid sick leave, initiated a proceeding under or related to paid sick leave, or testified or is about to testify in such a proceeding.

A violation of EPSLA will subject an employer to the same penalties as a violation of the FLSA.16 This means that an employee may bring an action on behalf of the employee and similarly situated employees in state or federal court to recover an amount equal to the federal minimum wage for each hour of leave denied, an additional amount as liquidated damages, and costs and reasonable attorneys’ fees.

The EFMLEA prohibits employers from interfering with, restraining, or denying an employee’s exercise of any right under the FMLA, including the EFMLEA; discriminating against an employee for opposing any practice made unlawful by the FMLA, including the EFMLEA; or interfering with proceedings initiated under the FMLA, including the EFMLEA. Employers subject to the EFMLEA are subject to the same enforcement as the FMLA, except employees may not bring a private action against an employer under the EFMLEA if the employer is not otherwise subject to the FMLA; an employee can only bring a private action where the employer has fifty or more employees for each work day of the previous twenty weeks. However, those employees may still file a complaint with the Department of Labor Wage and Hour Division.

APPLICATION OF THE AMERICANS WITH DISABILITIES ACT DURING THE COVID-19 PANDEMIC As a general rule, employers are permitted to take measures to avoid “direct threats” to the workplace. A “direct threat” is “a significant risk to the health or safety of others than cannot be eliminated by reasonable accommodation.”17 There are four criteria that courts consider when determining whether an individual poses a direct threat: 1) the duration of the risk; 2) the nature and severity of potential harm; 3) the likelihood the potential harm will occur; and 4) the imminence of the potential harm.18 In its extensive pandemic guidance the EEOC has determined that COVID-19 currently poses a “direct threat” to the workplace. This determination is based upon the fact that the 44

The Journal of the Kansas Bar Association

CDC and other public health authorities have declared COVID-19 to be highly contagious and declared that it poses severe risks to the health and safety of others.19 Applying the “direct threat” analysis, a business that is covered by the ADA can nevertheless take several extra steps to ensure the safety of the workplace. For example:

•

•

•

•

•

• A business could rescind a job offer based on the fact that the candidate tested positive prior to starting employment.

During the pandemic, ADA-covered employers may ask employees if they are experiencing symptoms of COVID-19, including reference to specific symptoms identified by the CDC or other state and local health agency.

An employer may also implement other screening measures, such as taking each employee’s temperature on a daily basis.

If an employee has a fever or reports symptoms, the employer can require the employee to stay out of the workplace until the employee is medically cleared to return to work. Medical clearance could involve requiring the employee to produce a negative COVID-19 test or being symptom-free for a certain number of days. An employer can also ban an employee from the workplace if the employee has traveled to a COVID “hot spot” or attended a high-risk event.

Although employers can ask about symptoms, they should still be cautious to avoid asking an employee whether the employee would be more vulnerable to the effects of COVID-19. Such questions would likely be a violation of the ADA. Furthermore, if an employer retains employee medical information during screenings, that information must be kept confidential, apart from employees’ other personnel records.

Employers may require employees to wear protective gear, socially distance, and use enhanced hygiene and cleaning protocol to help prevent the spread of the COVID-19 virus.

Employers and employees are both encouraged to exercise more flexibility with respect to temporary accommodations. For example, given the urgent nature of the pandemic, employers may forgo or shorten the “interac-

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tive process” that would normally be used to determine what accommodation may be necessary. Instead, an employer may temporarily grant an accommodation. In this case, employers may impose specific time periods for the accommodation – to account for changing circumstances of the pandemic and determine whether the accommodation poses an undue burden.20

CONCLUSION The COVID-19 pandemic has created unprecedented challenges in the Kansas workplace. Businesses have always sought to balance productivity with safety, but the pandemic has raised the stakes. On one hand, a business can be forced to close permanently due to lack of activity. On the other hand, a COVID-19 outbreak in the office or workplace can be equally crippling.

As Kansas lawyers, we should familiarize our clients with the basic provisions involved in Kansas House Bill 2016, the Families First Coronavirus Response Act, and the “Direct Threat” analysis so that our clients are better equipped to navigate the challenges of the COVID-19 pandemic. n An update from the Author: Congress passed the Consolidated Appropriations Act of 2021 (CAA) on December 21, 2020. The CAA extends the available employer’s tax credit for leave taken under the FFCRA through March 31, 2021.

However, the employee’s statutory entitlement to leave under the FFCRA was not extended. As a result, between January 1, 2021 and March 31, 2021, employers covered by the FFCRA may voluntarily provide leave to employees for qualifying reasons under the FFCRA and claim the corresponding tax credit, but are not required to do so.

1. http://www.kslegislature.org/li_2020s/b2020s/measures/documents/hb2016_enrolled.pdf 2. https://governor.kansas.gov/governor-kelly-signs-bipartisan-COVID-19-response-bill/.

3. Healthcare provider “means a person or entity that is licensed, registered, certified or otherwise authorized by the state of Kansas to provide healthcare services in this state […].”

4. A COVID-19 claim “means any claim for damages, losses, indemnification, contribution or other relief arising out of or based on exposure or potential exposure to COVID-19 [and] includes a claim made by or on behalf of any person who has been exposed or potentially exposed to COVID-19, or any representative, spouse, parent, child or other relative of such person, for injury, including mental or emotional injury, death or loss to person, risk of disease or other injury, costs of medical monitoring or surveillance, or other losses allegedly caused by the person’s exposure or potential exposure to COVID-19.”

5. https://www.cdc.gov/coronavirus/2019-ncov/php/contact-tracing/ contact-tracing-plan/overview.html 6. https://ag.ks.gov/media-center/news-releases/2020/06/05/ ag-derek-schmidt-kansas-to-protect-privacy-and-civil-liberties-duringCOVID-19-contact-tracing-by-statute 7. Public Law 116-127 available at https://www.congress.gov/ bill/116th-congress/house-bill/6201/text 8. 29 CFR § 826.

9. 29 CFR § 826.20.

10. https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#100 11. 29 CFR § 826(a)(i)-(vi).

12. https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#58 13. https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#56 14. Available at https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf.

15. https://www.irs.gov/newsroom/COVID-19-related-tax-creditsgeneral-information-faqs 16. See penalty provisions contained in 29 U.S.C. § 216-17.

17. 42 U.S.C. 12111(3); Osborne v. Baxter Healthcare Corporation, 798 F.3d 1260, 1268 (10th Cir. 2015).

18. 29 C.F.R. § 1630.2(r); Osborne, 798 F.3d at 1268.

19. https://www.cdc.gov/coronavirus/2019-nCoV/index.html.

20. https://www.eeoc.gov/wysk/what-you-should-know-about-COVID-19-and-ada-rehabilitation-act-and-other-eeo-laws.

About the Author Isaac Keppler is a partner with Colantuono Guinn Keppler LLC. He represents clients in both state and federal court and before administrative agencies. Isaac regularly counsels clients on matters involving routine hiring and firing, payroll and FLSA compliance, ADA and GINA/ ADEA/FMLA/Title VII discrimination, retaliation and harassment issues, employment contracts, noncompetition agreements, and a variety of human resources, employee management, and other business issues. Isaac is admitted to practice in Kansas, Missouri and Idaho. A graduate of Western New England University School of Law, Isaac worked as a litigation attorney for a mid-sized litigation and business firm in Boise, Idaho earlier in his career. He has also clerked for a state district court judge and worked as a research and writing attorney for the Kansas Supreme Court. ik@ksmolaw.com

www.ksbar.org | January/February 2021 45

Have you considered becoming a Kansas Bar Foundation Fellow?

The Kansas Bar Foundation

• increases access to legal services for underserved communities • helps promote access to justice for all Kansans • funds scholarships that benefit Kansas law students • administers the IOLTA grant process benefitting organizations that provide civil legal services and the administration of justice to Kansans • supports efforts to educate the public regarding the law We encourage all Kansas lawyers to become Fellows—it’s an excellent way to give back to your profession, to fund key law and justice programs and to provide volunteer opportunities for you and your colleagues.

Your $1,000 pledge may be made online or through the mail.

You may pay in annual installments of $100.

Online: www.ksbar.org/pledge By mail: Kansas Bar Association • PO Box 751080 • Topeka, KS 66675-1080 Already a Fellow? Wonderful! Please consider increasing your pledge and move to a higher level of giving!

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If you have questions, please contact Lisa Leroux-Smith: llerouxsmith@ksbar.org

The Journal of the Kansas Bar Association

diversity corner

A Brief Survey of Diversity in the Western Kansas Bar: Where Are We and Where Do We Go from Here?

by Etta L. Walker

W

hen asked to write a column about diversity or racism in rural or Western Kansas, I thought I was ill-suited for the assignment. I am a white female lawyer in the second-least populated county in Kansas, which is approximately 90 percent white and in which 93.22 percent of voters voted for the Republican ticket in the 2020 election, up from 91 percent in 2016. Lawyers surely are by definition privileged and white lawyers more so. In the profound wake of the renewed civil rights movement, prompted by the eight and a half minutes of a cop’s knee on the neck of George Floyd, what can be written that does not pale in comparison to the more pressing issues in our culture?

What I can do is provide a look at some of the facts, which may prompt at least some awareness and begin a new exploration of diversity and bias in our communities. My review raises more questions than it answers.

Our Population and Representativeness I live on the border of far Northwest Kansas—where the population is predominantly white, less than 10 percent Hispanic and less than 5 percent black—and Southwest Kansas, where three counties are majority Hispanic and eleven other counties range from 16 percent to 48 percent Hispanic.

I began by looking for Western Kansas county population statistics on commonly accepted categories of diversity such as religion, national origin, race, color, sex, and disability. Those figures are difficult to find, both for the general population by county and for the bar. The Kansas Attorney Registration office does not collect this information, although I hope it will begin doing so, and the ABA has estimates for the state, but apparently not for individual counties.

Kansas has nearly equal numbers of males and females,1 and in my quick search I did not find the percentage of the population identifying as other genders. Approximately 9 percent of Kansans have permanent disabilities.2 For other diversity, Kansas has:3 Hispanic or Latino Black/African American alone American Indian/Alaska Native alone Asian alone Pacific Islander/Native Hawaiian alone Two or more races White alone, not Hispanic or Latino

12.2% 6.1% 1.2% 3.2% .01% 3.1% 75.4%

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diversity corner

The composition of undergraduates enrolled at Fort Hays State University, which is the only four year public university in the western part of Kansas and may be a feeder institution for lawyers for the west, is fairly close to the state averages, according to the Common Data Set for 2018–2019 for FHSU. Many counties in Western Kansas have significant numbers of Hispanic or Latino residents and three have more than 50 percent Hispanic/Latino populations.4 Seward 62.0% Ford 55.6% Finney 50.5% Grant 47.9% Stanton 37.7% Stevens 36.8% Hamilton 36.0% Kearny 32.3% Haskell 31.4% Wichita 29.9% Morton 23.4% Greeley 19.9% Scott 18.5% Gray 16.4% Yet through my informal survey and review, I found no Hispanic district judge and only one Hispanic district magistrate judge in Western Kansas, and located only a few Hispanic attorneys and four other attorneys who are persons of color or other non-Anglo ethnicity. 5 In Southwest Kansas, Ford County—home of Dodge City—has 39 attorneys, per the Blue Book. Four (almost 10 percent) are Hispanic and 12 (30 percent) are women, according to my inquiries. Finney County, home of Garden City, has three attorneys who are Hispanic (five percent) and 16 women (28 percent) out of the 57 total attorneys. Seward County has 29 attorneys, seven of whom are women, and one Latinx/Hispanic attorney. 6 County Population % Hispanic # Lawyers

Ford 33,619 55.6 39 Finney 36,467 50.5 57 Seward 21,428 62.0% 29

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Women Lawyers 12 (30%) 16 (28%) 7 (24%)

The seven counties that make up the Northwest Kansas 15th Judicial District are very different from Finney and Ford Counties demographically. The entire 15th district has 29 practicing resident lawyers, 28 percent of whom are women (8) and 3 percent black (1), none Hispanic.

Western Kansas counties have fairly close to equal populations of men and women, yet only three out of 19 district judges (16 percent) and 11 out of 41 district magistrate judges (27 percent) are women in the 15th, 16th, 17th, 20th, 23rd, 24th, 25th, and 26th Judicial Districts combined. (The judicial districts do not line up to allow a neat line to be drawn down the middle.) The female district judges are in Hugoton, Dodge City, and Ellsworth.7 Black or African American population by county in western Kansas ranges from 0.4 percent in Cheyenne County to 5.6 percent in Pawnee County. I found no Black or African American judge in any of the Western Kansas districts.

According to The Gavel Gap Report published by The American Constitution Society, based on 2014 data, Kansas ranks 47th in gender-representativeness in state courts and 30th in race and ethnicity representativeness.8 As to women nation-wide, Women comprise roughly one-half of the U.S. population and one-half of American law students. But, less than one-third of state judges are women. In some states, women are underrepresented on the bench by a ratio of one woman on the bench for every four women in the state. Not a single state has as many women judges as it does men. 9 Does Representativeness Matter? Is the Lack of Diversity Hurting Us and Impeding Justice?

For the larger community, diversity within the bar and on the bench enhances the perception of legitimacy of the entire legal system. Supreme Court Justice Elena Kagan said, “People look at an institution and they see people who are like them, who share their experiences, who they imagine share their set of values…they feel more comfortable if that occurs.”10 Are there biases at play? How much of our experience do they affect? And what about the larger community? At a recent KBA conference, Dionne King defined Hispanic unconscious bias in part as “the preference for Lawyers the same that can disadvantage others who are perceived as different.”11 People tend to like oth4 (10%) ers who are similar to themselves, and to perceive 3 (5%) people who are similar to themselves more posi0 tively than people who are different.12 For the individual defendant, it is conceivable that the principle of equal protection someday could be ex-

diversity corner

tended to the right to counsel, and perhaps even to judges, although the comparatively small number of judges probably makes it unlikely that a court would find a due process violation. This is not analogous to the intentional conduct in the exercise of juror challenges in Batson v. Kentucky,13 but the concept is instructive, especially given that the pool of judges and attorneys in Western Kansas does not often include members of the minority or Hispanic defendant’s demographic.

Another window on systemic bias is through juvenile and CINC cases, where we can see that children who have adults who can advocate for them may get results at school, in the community, on sports teams, in the justice system—not necessarily appropriate results, but results—that children whose parents cannot advocate for them, perhaps because of socioeconomic conditions, language barriers, or education, do not receive. This is not unique to rural or Western Kansas.

For members of the bar, the significance of diversity or lack thereof is complex. In many of our rural counties, we have so few attorneys and so little apparent diversity, that many of us may not notice biases or the lack of diversity. We know our differences—some of our attorneys lived and practiced elsewhere, in cities, in the military, at large firms, in institutions.

Others came home after law school and never left. Most grew up here. Many, if not most, rural lawyers have diverse practices that span many types of law, from contracts and real property to criminal law to estate planning. Our clients range from small and large businesses to people on minimum wage incomes, citizens and non-citizens, and so on.

We have a shortage of lawyers, and we are often just happy to have a lawyer on the other side. Lawyers look forward to seeing each other on Motion Day and at other events, and most are generous with their time and happy to help any lawyer who asks. Most bars tend to be largely collegial, and several lawyers in my area have gone above and beyond to be helpful—to share information, talk strategy, and reflect together.

Several attorneys shared with me their desire not to discriminate against others based on age, gender, color of skin,

political views, and so on, and that as to other attorneys, they are focused on competence, and as to clients, they are focused on their rights and needs. One attorney pointed out that his practice is a business. Several mentioned friendships formed during college, law school, military service, and other work experiences that contributed to their awareness of diversity and the importance and benefits of diversity.

Some commented that the structure of firms and some bar activities are traditional structures that work better for or are enjoyed more by male lawyers, older lawyers, and by those with stay at home spouses. Some noted that expectations at work and for bar events may not be aligned because of a lack of understanding about schedules and time demands, particularly of working mothers. Other concerns included the community shortages and unavailability of day care, and judgment or fear of judgment about maternity leave.

One attorney noted that “diversity is important since we need different viewpoints on a problem” but that “we need to keep in mind that it is not the color, culture, or mental or physical impairments that count, but what the individual can do.”

Another attorney acknowledged candidly that there is bias in the community, as there is throughout America, and that we do not know how to change the culture. In an era of contradictions, in which the open expression of bias has been normalized, but more than half of Americans recognize that systemic racism and sexism exist, what can lawyers and judges do in the justice system and in our communities to improve?

We should wrestle with this question.

One said, of attitudes of bias in sparsely populated counties, “I don’t fault [] people for close-mindedness because I don’t think it’s intentional. [People] just aren’t exposed to differing viewpoints or anyone different from themselves.”

Another attorney from a sparsely populated county concluded that not being “from here” is a bigger barrier for people coming to rural communities than factors such as gender, race, ethnicity, sexual orientation, etc. One noted that people of color are frequently asked where they are from, even when they go to the grocery store. “Where are you from?” is often the second or third question after “Hello” in our rural areas, and although it is often a way of finding connections and establishing trust, it can be alienating to people who are not “from” here—or even if they are but are Hispanic or not white, in communities that are almost entirely white and non-Hispanic. What other micro and macroaggressions occur? One’s experience in Finney County, though, where more than 30 languages are spoken in the school district and around 40 languages at the Tyson plant, could be completely different.

Several shared the view of one attorney that in order to be successful in rural Kansas, people must “completely immerse www.ksbar.org | January/February 2021 49

diversity corner

themselves in the communities they would serve,” and likened the process to “total immersion in learning a foreign language”: getting involved in activities and organizations, coaching Little League, playing golf at the country club, joining Rotary, and so on—but acknowledged that these things are hard to do if one does not have historical or familial ties.

Most agreed that Western Kansas counties are wonderful places to raise a family.

A significant number of attorneys practiced elsewhere first, then made sacrifices in order to “come home,” and were surprised, as one said, that one had to “prove” oneself for several years “to be accepted and get opportunities” despite being “from here.” One recalled comments on jury questionnaire about a woman lawyer: “That lawyer has ideas that don’t belong in our community,” even though the woman lawyer was “from here.” Some commented about the lack of diversity in the community and pressure not to be “different.”

What Next?

A more extensive survey of lawyers and judges, with a breakdown of results from sparsely populated communities and from the larger population centers (Hays, Liberal, Dodge City, Garden City) would be useful for our efforts to address impediments to recruitment and retention of attorneys as well as to reveal our biases and how those are manifested in our work. It would also be helpful to know more about our communities: Are women and people of color and Hispanics and others represented in other public offices in the county? May we draw conclusions from this information? Does it affect recruitment of attorneys? Does it affect quality of life?

As lawyers and judges, are we sure that we treat each other and all litigants and criminal defendants the same, regardless of color or national origin or Main Street pedigree? We would hope to be so perfect, but most of us at least have had an experience in which we noticed a prejudgment cross our minds, or exercised our own privilege, or noticed a relationship, a favor, special treatment, perhaps, or more. We’re not immune from the sometimes conscious, sometimes subconscious “preference for the same that disadvantages others.”

What can we do to notice our biases? In large firms, attorneys receive regular feedback, as well as regular training and efforts to improve each other’s performance. In solo and small firm settings, there is often no graceful way to give or receive feedback as the only persons observing your work are opposing counsel and the court. We could create peer groups and sponsor organizations such as or similar to Inns of Court As to judges, we could create a regular judicial evaluation system similar to that used in Colorado, so that judges could receive meaningful feedback about subtle manifestations of bias as well as other performance factors unlikely to be the subject of appeals, but affecting the administration of justice.

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Do Hispanics/Latinos and people of color have confidence in our justice system? I did not find that minorities in Kansas have been surveyed about this question.14 It is not clear that confidence is possible when no one in the system looks like you do, or even speaks your language, and the only available translator is not familiar with words or expressions used in your place of origin. Is it even possible for us to defend a client as well when we have a communication barrier?

Do women or people of color or people with other diversity characteristics want to be judges in our communities? If so, why aren’t they? These questions have to be tackled locally both within the bar and in the larger community. Our area bar associations could consciously make it a goal to develop a more representative bench and begin by recruiting and mentoring younger attorneys. We could encourage younger lawyers to aspire to be judges, and we could make efforts to train younger lawyers so that they are equipped to handle a varied caseload if elected or appointed, and to do so efficiently.

Do we have problems to solve? Yes. Are our communities welcoming and fair to people who are different from the majority populations? Some are better than others. Are our lawyers welcoming? We think so, but probably not enough— maybe we’re doing the same thing we did twenty years ago, and it’s time to try something different, or to make more time for helping young or returning lawyers ease into the community. Do we welcome diversity? Yes and no. Why the lack of representativeness, which is true state-wide? Do young lawyers want to move to our communities? Not enough of them do—we need more lawyers in Western Kansas. Our lawyers are more than willing to help young lawyers get started, and willing to listen, too. n

About the Author Etta L. Walker grew up in Wallace County, attended the University of Kansas, worked in agriculture in Wallace County, and attended the University of Colorado School of Law, where she was an Articles Editor for the Law Review. She clerked for the Hon. Procter R. Hug, Jr., United States Circuit Judge, Ninth Circuit Court of Appeals, and was a litigator at a large Nevada firm before returning home to Western Kansas in 2004, where she has a general practice.

She belongs to the Kansas, Colorado, Nevada and American Bar Associations, the Kansas Women Attorneys Association, and numerous other organizations, and formerly was a member of the Bruce R. Thompson Inn, American Inns of Court. She practices in Western Kansas and Eastern Colorado and is the mother of two young women.

EttaLWalker@hotmail.com

diversity corner

1. Kansas QuickFacts, United States Census Bur., https://www.census. gov/quickfacts/KS (last accessed Aug. 26, 2020) (estimating population as of July 1, 2019).

2. Id. 3. Id. 4. Kansas Hispanic or Latino Origin Population Percentage by County, IndexMundi, https://www.indexmundi.com/facts/united-states/ quick-facts/kansas/hispanic-or-latino-population-percentage#table (last accessed Aug. 26, 2020) (citing U.S. Census Bureau Population Estimates Program Population and Housing Unit Estimates, and American Community Survey).

5. My numbers may be inaccurate; I could not find a source containing this information, and so I searched for names of judges and asked other attorneys for help in identifying other attorneys and judges. It would be helpful if this information were collected through the attorney registration process and also for nonlawyer district magistrate judges.

6. The Blue Book is the Kansas Legal Directory for 2019-2020, published by Legal Directories Publishing Company, Inc. It may contain retired attorneys, as well, so it is possible that women and Hispanic attorneys represent a percentage of the bar in Ford, Finney, and Seward Counties different from what is stated here.

7. To the east, District 27, which is Reno County (Hutchinson) has two women district judges out of four positions. I also did not include District 30 as it extends as far east as Sumner County.

8. Id. 9. TRACEY E. GEORGE & ALBERT H. YOON, THE GAVEL GAP, AM. CONST. SOC’Y 6 (2014), https://gavelgap.org/pdf/gavel-gap-report.pdf.

10. Adam Liptak, Sonia Sotomayor and Elena Kagan Muse Over a Cookie-Cutter Supreme Court, THE N.Y. TIMES, (Sept. 5, 2016), https://www. nytimes.com/2016/09/06/us/politics/sotomayor-kagan-supreme-court. html (quoted in Danielle Root et. al, Building a More Inclusive Federal Judiciary, CTR. FOR AM. PROGRESS, (Oct. 3, 2019, 8:15 AM), americanprogress.org.

11. See Unconscious Bias: Creating A More Conscious Legal Organization, Dionne M. King, DMK Consults, KBA Virtual Conference Presentation, August 21, 2020.

12. Id. 13. 476 U.S. 79. 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

14. The Pew Research Center conducted a National Latino Survey in 2018 and included discrimination questions. See https://www.pewresearch.org/hispanic/datasets/. A survey specific to Kansas would be helpful.

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The deadline is June 30, 2021.

You can complete ALL of your hours online!

Don’t procrastinate. Check out our online CLEs today! www.ksbar.org/CLE

www.ksbar.org | January/February 2021 51

law students’ corner

Intellectual Property: Always Around Us, But Rarely a Focal Point

by Paige Reese

T

he words I write about this topic—intellectual property. The drawing of our family that my cousin created – intellectual property. A new way to cook ramen and get back to studying faster—intellectual property. Those outlines law students labor over—intellectual property. Although many view intellectual property as something only an individual at a large technology company creates, it is all around us, and we generate it through everything we do. Despite this, intellectual property does not get the attention it deserves.

When writing, I typically like to include a quote that furthers my perspective in a profound way. However, when searching for quotes on intellectual property, I came up short.

I became disheartened by this fact, because all I wanted was some sort of punchline to expand on. Then I realized, is that 52

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not my entire point? Intellectual property is a vital piece of our lives, but it is hardly mentioned. Some do not even know what the term “intellectual property” means, let alone what “copyrights,” “trademarks,” and “patents” protect.

Intellectual property takes three major forms: copyrights, patents, and trademarks. “Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”1 Copyrights protect works of authorship (ranging from books to movies, paintings to drawings, sheet music to lyrics).2 Patents, on the other hand, are given to an individual who “invents or discovers any new

law students’ corner

and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof….”3 In short, patents protect inventions. Lastly, trademarks typically protect logos and names for products.4 Although intellectual property is a major component of what we do in our lives, many law students and lawyers alike do not know any of the essential concepts of intellectual property. People immediately dismiss themselves as being able to understand it, as it is “too technical for them.” Further, they assume they do not need to understand it anyway. However, this could not be further from the truth. Intellectual property accounts for over 38 percent of the United States’ economy.5 It bleeds into every area of the law, and every attorney should have some basic understanding of its fundamentals. Intellectual property rights might pass by a will; corporations may spend a majority of their resources creating new intellectual property and ask for legal advice on corporate finance; a divorced couple may argue over who retains intellectual property rights in their joint enterprise. It is about time we recognize its importance and educate around it.

Law schools should encourage intellectual property courses, even for those students who might not be interested in that practice. Students should stop selling themselves short and quit saying, “well, I’m not an engineer, so of course I cannot understand intellectual property.” Our schools can shape the next generation of attorneys to know about an area of the law that is an increasingly important and necessary part of the law. Although I am not advocating for a change in required curriculum, I believe intellectual property courses should be recommended to all students, regardless of their undergraduate degrees and intended practice.

I urge every attorney, law student, and other interested reader to take a moment to learn something about intellectual property. Whether that is educating yourself on intellectual property protections or understanding how your own work intersects with intellectual property, knowledge is key.

Intellectual property is becoming more and more important as technology advances further. Do not be left in the dark on such a crucial area of the law! Embrace it and become knowledgeable about it. You will be better off for it. n About the Author Paige Reese is a third-year law student at Washburn University School of Law. She holds a B. S. in Computer Science from Wichita State University.

After graduation, she will be working as an Associate for Patterson + Sheridan, LLP. She currently serves as the Senior Articles Editor for the Washburn Law Journal, Vice President of the Washburn Intellectual Property Law Society, Treasurer of the Washburn Student Bar Association, and Secretary of the Pro Bono Society. She is so grateful for the Washburn Law faculty, staff, and fellow students who have become family over the past couple years. Ad Astra Per Aspera! paige.reese@washburn.edu 1. 17 U.S.C. § 102(a) (2020).

2. 17 U.S.C. § 102(a)(1)-(8).

3. 35 U.S.C. § 101 (2020).

4. Trademark Process, USPTO, https://www.uspto.gov/trademarksgetting-started/trademark-process#step1 (last visited Oct. 25, 2020).

5. Intellectual Property and the U.S. Economy, USPTO, https://www. uspto.gov/learning-and-resources/ip-motion/intellectual-property-andus-economy (last visited Oct. 25, 2020).

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www.ksbar.org | January/February 2021 53

notice to kba members

Recent changes to KBA bylaws: Please review Below are the sections that have recently been updated by the Board of Governors.

If you’d like to review the bylaws in full, you can find them at: https://cdn.ymaws.com/www.ksbar.org/resource/resmgr/Files/bylaws.pdf 4.2 Composition and Qualifications. The membership of the Board shall be comprised of “Governors.” Only Regular Members of the Association in good standing may serve as a Governor. The Governors shall be comprised of the following persons: (a) District Governors. One or more Governors (as provided below) shall be elected from among the Regular Members of the Association who reside or have their primary office in each geographic district (“District”), as established below, by the Regular Members residing or having their primary office in such District by vote of a plurality of such Regular Members casting votes in such election.

District No. 1: The county of Johnson.

District No. 2: The counties of Atchison, Brown, Doniphan, Douglas, Franklin, Jackson, Jefferson, Leavenworth, Miami, Nemaha, Osage, Pottawatomie and Wabaunsee.

District No. 3: The counties of Allen, Anderson, Bourbon, Cherokee, Crawford, Labette, Linn, Montgomery, Neosho, Wilson and Woodson.

District No. 4: The counties of Butler, Chase, Chautauqua, Coffey, Cowley, Elk, Greenwood, Lyon and Sumner.

District No. 5: The county of Shawnee.

District No. 6: The counties of Clay, Cloud, Dickinson, Ellsworth, Geary, Lincoln, Marion, Marshall, McPherson, Morris, Ottawa, Republic, Riley, Saline and Washington.

District No. 7: The county of Sedgwick.

District No. 8: The counties of Barber, Barton, Harper, Harvey, Kingman, Pratt, Reno, Rice, and Stafford.

District No. 9: The counties of Clark, Comanche, Edwards, Finney, Ford, Grant, Gray, Greeley, Hamilton, Haskell, Hodgeman, Kearny, Kiowa, Lane, Meade, Morton, Ness, Pawnee, Rush, Scott, Seward, Stanton, Stevens and Wichita.

District No. 10: The counties of Cheyenne, Decatur, Ellis, Gove, Graham, Jewell, Logan, Mitchell, Norton, Osborne, Phillips, Rawlins, Rooks, Russell, Sheridan, Sherman, Smith, Thomas, Trego and Wallace.

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District No. 11: The county of Wyandotte.

District No. 12: All geographic areas outside of the state of Kansas.

Each District shall have at least one (1) Governor. To the extent that any District has more than 400 Regular Members who reside or have their primary office in such District, then such District shall have the number of additional Governors determined by dividing the total number of Regular Members who reside or have their primary office in such District by 400, with any fractional portion thereof being disregarded. A count of the number of Regular Members from each District will take place in June annually, with the results provided to the Board within five (5) business days after completion of the count. If a District’s Regular Member membership decreases to the point where an additional position on the Board is no longer numerically supported under such formula, such reduction in the number of Governor positions eligible for election from such District shall take effect at the election subsequent to the next election following such decrease, provided that no then empaneled Governor’s current term of office shall be reduced as a result of any such reduction. In no event will any District have more than three Governors.

The Journal of the Kansas Bar Association

notice to kba members

(b) Officers. The following elected officers of the Association shall each serve as a Governor concurrent with the term of their office: President, President-Elect, Vice President, Secretary- Treasurer. The Immediate Past President and the President and Past President of the Young Lawyers Section shall each serve as a Governor concurrent with the term of their office.

••••• (d) Diversity Seat. Every three years, or in the event of a vacancy, the President, subject to the approval of the Board, may appoint one (1) person who is a Regular Member to a three-year term as a Governor. In the event of a vacancy, the then-current President may appoint one (1) person who is a Regular Member to complete the vacated term.

The purpose of this appointment is to promote diversity on the Board so that it better represents the membership and to encourage diverse viewpoints which may not otherwise be represented on the Board. The Executive Committee should encourage such appointed Governor to seek an elected position on the Board following the conclusion of their appointed term. An appointed Governor may not be re-appointed for a subsequent term but may seek election to the Board at any time. Only one person may serve as a Governor pursuant to this paragraph at any given time. The right of the President to make an appointment pursuant to this paragraph will expire following the 2030 Board election cycle.

••••• 7.1 Executive Committee. The Executive Committee of the Board shall be comprised of the President, President-Elect, Vice President, Secretary-Treasurer, President of the Young Lawyers Section, Past President of the Young Lawyers Section and two (2) At-Large members elected annually by the Board from the membership of the Board.

www.ksbar.org | January/February 2021 55

Members in the News N

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W

S

!!!

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 Angela Anderson of Alma was selected in November 2020 to fill a magistrate judge vacancy in Wabaunsee County. Prior to her selection, Anderson was the clerk of the district court for Wabaunsee County. The 2nd Judicial District includes Jackson, Jefferson, Pottawatomie and Wabaunsee counties.

The vacancy was created by the retirement of District Magistrate Judge Blaine Carter.

Baty Otto Coronado PC expanded its litigation team with the addition of three new associate attorneys: Stephen M. Lillis has joined the firm’s St. Louis office. A graduate of John Carrol University, Lillis earned his J.D. from Saint Louis University School of Law with a concentration in business transactions. He is an experienced litigator having worked for St. Louis area firms, most recently with a national firm handling asbestos-related cases.

Jacob D. Bielenberg has joined the firm’s Kansas City office. He is a civil litigator who has practiced in Kansas City and SE Kansas. A graduate of the University of Northern Colorado and of the Washburn University School of Law, Bielenberg’s focus has been on water law, land use, municipal governance and criminal matters.

Bretton W.H. Kreifel also joined the Kansas City office of Baty Otto Coronado. A summa cum laude graduate of the University of Missouri-Kansas City, Kreifel obtained his J.D. from Washburn University School of Law. He previously served as a research attorney for Justice Carol Beier of the Kansas Supreme Court and also served an externship to Justice Marla Luckert before her ascent to Chief Justice.

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Kate Duncan Butler has joined Barber Emerson, L.C. in Lawrence. Her practice will primarily focus on civil and appellate litigation. Previously, Butler was a research Attorney for the Hon. Karen Arnold Burger, and most recently was an Assistant District Attorney for Douglas County.

Jake Conard, previously Cherokee County Attorney, has resigned that office to join the staff of Congressman-elect Jake LaTurner in Washington D.C. Former County Attorney Nathan Coleman has been hired to succeed Conard. Conard, his wife and twin four-year-old sons will move from their farm to an apartment in the nation’s Capital.

Beth Evers has been named a partner with Sanders Warren Russell & Scheer LLP in Kansas City. Before joining the firm, Evers was an Assistant District Attorney with Wyandotte County. Following that, she transitioned her skills to a successful civil practice on the defense of individuals and companies involved in litigation. She routinely handles cases involving catastrophic injury and wrongful death, trucking and transportation, employment discrimination claims and government liability.

Larry A. Pittman, III, has joined the Kansas City firm of Sandberg Phoenix. Pittman brings more than 17 years of experience in business, debtor-creditor rights and secured transactions. His practice includes counseling businesses on complying with consumer protection statutes, structuring secured transactions and lending relationships as well as defending businesses against consumer claims. Pittman holds a J.D. from the University of Missouri – Kansas City School of Law. The Kansas City office of Sandberg Phoenix announced several changes in mid-November 2020. Shareholder Meghan Lewis moved up to managing attorney for that location—the second woman to hold that position. In addition to her areas

members in the news

of practice, Lewis will serve as the liaison between the KC office and the firm’s headquarters in St. Louis. Shareholder Sharon Stolte has transitioned to Team Lead of the firm’s Bankruptcy and Creditor’s Rights Team. Stolte has more than 25 years of experience with a focus on bankruptcy, Chapter 11 debtor and creditor issues, as well as Chapter 7 and Chapter 13 consumer debtor matters. Katrina Smeltzer was named Shareholder, effective Nov. 1, 2020. Smeltzer leads the firm’s Professional Liability Team. She is an experienced litigator, representing clients from many different industries on a variety of issues. Jared Cluck was also welcomed into the firm as an associate attorney. He brings a broad scope of experience in tort, employment and civil rights litigation matters.

Gaten Wood was sworn in as the 30th Judicial District Court Judge late in December, filling the vacancy created by the retirement of Judge R. Scott McQuin. Wood crew up in Caldwell, Kan., attended Cowley County for two years and Kansas State University for two years. Following that, he went to law school in Oklahoma City. Most recently, Wood was Barber County Attorney. Daniel Lynch of Pratt will assume the position as Barber County Attorney and Hannah Brass will serve as County Counselor. Gaten Wood, his wife Amber and their children Blake, Connor, Mac and Easton will move to take this new position.

NEW LOCATIONS/AFFILIATIONS H. Hurst Coffman, S. Lucky DeFries, Jeffrey A. Wietharn and Kyler C. Wineinger, previously of the Topeka firm Coffman, DeFries & Nothern, P.A., have joined the The Law Offices of Morris Laing in its Topeka office.

NOTABLES Judge Kim Cudney, chief judge of the 12th Judicial District, was elected president-elect of the Kansas District Judges Association. Cudney has served as chief judge of the 12th since 2006; the district is comprised of Cloud, Jewell, Lincoln, Mitchel, Republic and Washington counties. She is a graduate of Kansas State University and earned her J.D. at Washburn University School of Law. The firm of Devaughn James Injury Lawyers was profiled last fall in the Wichita Business Journal as a great place to work. Employees enthusiastically referred to coworkers as a team and as family, saying they love coming to work. The company has a number of fun activities to engage and reward its employees, creating a positive atmosphere that reflects to its clients.

Chief District Judge Gary Nafziger of the 2nd Judicial District retired Jan. 11 after 38 years of service. He became a district judge in 1982 and was appointed chief judge of the 2nd Judicial District in 2005. The 2nd Judicial District is composed of Jackson, Jefferson, Pottawatomie and Wabaun

see counties. Raised on a farm near Cuba, Kan., Nafziger graduated with a degree in business administration from Kansas State University and earned his law degree from Washburn University. He has been married to his wife Janice for 52 years. They have two daughters and three granddaughters.

Four candidates were to be interviewed in January for consideration to succeed retiring Judge Steve Hilgers as the magistrate judge in McPherson County: JoAn M. Hamilton Lindfors of Marquette who is a retired lawyer; Ellen G. Neufeld of Inman who is in private practice; Gary L. Price, Jr. of McPherson who is a lawyer in the Boyer & Price lawfirm and a municipal judge for Canton, Lindsborg and Moundridge; and Susan C. Robson of Marion, a lawyer at Brookens & Robson law firm. Interviews for the position were to be conducted by the 9th Judicial District Nominating Commission.

Michael Powers, Marion County District Judge, was honored in late 2020 with a Judicial Excellence award from the Kansas District Judges Association. Powers became a judge in 1991 and was appointed chief judge of the 8th Judicial District in 1994. That district includes Marion, Dickinson, Geary and Morris Counties. He earlier served as Morris County Attorney and was in private practice before being appointed to the bench.

Rebein Brothers Law Firm of Dodge City was named in the U.S. News and Word Reports 2021 edition of Best Law Firms. The firm was recognized for its work in personal injury and commercial litigation and its consistent ratings from clients and peers. Best Law Firms lists are compiled based on strenuous peer review evaluation.

Elizabeth Schartz, an alumna of the University of Kansas School of Law, has established the Elizabeth A. Schartz Law Scholarship with a $57,500 pledge to KU Endowment. The scholarship is preferentially aimed at students who live in or graduated from high school in Finney, Fort, Gray or Hodgeman counties. Schartz explained she was inspired to “pay forward” the opportunity she received by establishing a dedicated law school scholarship for students from rural counties, particularly those from Gray County and the surrounding area. Schartz grew up in Cimarron and is a 1988 graduate of the University of Kansas School of Law. She is a partner with Thompson & Knight law firm in Dallas, Tex., where she represents management in client counseling and litigation of employment and labor law matters. She is also a member of the KU Endowment Board of Trustees and serves on the KU Endowment Governance Committee.

Judge Melissa Taylor Standridge of Leawood was selected by Kansas Governor Laura Kelly to fill a vacancy on the Kansas Supreme Court. Standridge had served on the Kansas Court of Appeals since 2008 and had previously worked for www.ksbar.org | January/February 2021 57

members in the news/obituaries

two federal judges and in private practice. Standridge will fill the position that opened in September when Justice Carol Beier retired.

Cheryl Whelan, KBA President-Elect, was recently appointed to the Administrative Judiciary Committee and the Military/Veteran Judges Committee for the National Association of Women Judges (NAWJ). Whelan is Director of the Office of Administrative Hearings and brings with her broad experience through her military service and legal work.

Whelan has also been named as a Trustee for the Command and General Staff College Foundation at Fort Leavenworth. The Command and General Staff College’s mission is to educate leaders for the challenges of the 21st Century. The Foundation supports the development of leaders of character and competence at the CGSC for ethical service to the nation through scholarship, outreach, and soldier and family support.

Obituaries Morris Birch (4/21/1944 – 12/2/2020) Morris Dean Birch succumbed to COVID-19 the night of December 2, 2020 at age 76. He was born April 21, 1944 in Wichita, Kansas to Marjory and Lauren Birch. He was the second of five children. He would marry Suzanne Hiebert in 1965, with whom he would spend 55 years before his passing. Morris and Suzanne have three children and 10 grandchildren. Morris was an eagle scout and among the first to graduate from Wichita South High School. He worked and paid his own way through Southwestern College in Winfield, Kansas, where he would meet his future wife. After graduating Southwestern with a degree in English, he worked his way through Washburn University, earning his JD. Morris returned to Wichita, working at several firms until ultimately opening a solo practice. He specialized in domestic law, defending those that often wouldn’t have had representation otherwise. He received several awards from the Kansas Bar Association for his pro bono work, in which he had significant pride. Another source of great pride was all of the work he did to help couples adopt or to find homes for newborns.

He was a constant presence in his children’s lives, never missing a game or a performance. He worked hard to provide his children with whatever resources they needed. Morris is preceded by his parents and his younger brother Richard. He is survived by his wife, Suzanne; one brother and two sisters; his son Matthew Birch and Kelly Birch and their children, Jeffrey, Adam, and Ryan; his son Andrew Birch and Kerry Birch and their children Faith and Liam; and his daughter Elizabeth Gibson and Bradford Gibson and their children Makenzie, Lauren, Ashley, Hunter, and Isabella. Given the ongoing danger of COVID-19, the family is unable to hold a 58

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proper service at this time. The family hopes to have a celebration of Mo’s life this summer, after vaccines are available and allow people to once again gather safely. Memorials may be sent to either Lorraine Avenue Mennonite Church or the Parkinson’s Association of the Plains, PO Box 771269, Wichita, KS 67277.

Orville J. Cole (3/4/1928 – 11/7/2020) Orville J. Cole, age 92, of Garnett, Kansas, died on November 7, 2020, at Olathe Medical Center, Olathe, Kansas.

He was born in Garnett, Kansas, on March 4, 1928, the third son of Ray D. Cole and Edna Mae (Reinfield) Cole. Cole received his law degree from Washburn University in January, 1951. He was immediately drafted into the Army where he served for two years in the 28th Infantry Division. Upon discharge from the Army in March, 1953, he commenced the practice of law in Garnett, Kansas, where he practiced until he retired in 1990. He was a member of the Kansas and American Bar Associations, the SOABS and Masonic Lodge. He is survived by his wife, LaVerne K. Cole: three children, Kathryn E. Harvey (James Clark), John Wm. Cole (Stephanie), Thomas M. Cole; and three grandchildren, Ashley Grosshuesch (Ty), Lacey Enriquez (Rhett), and Nicholas L. Wales.

Sheryl B. Etling (9/16/1945 – 12/5/2020) Sheryl B. Etling, 75, died on Saturday, December 5, 2020 at the Ranch House in Garden City. She was born on September 16, 1945 at Dighton the daughter of Hoy B. & Wreatha (Hesser) Etling.

obituaries

Sheryl graduated from Garden City High School. In 1967 she received her Bachelor’s from Kansas State University in Speech. In 1969 she earned her Masters in Speech & Dramatic Art from the University of Iowa. For 3 years she was an instructor in Communications and Associate Director of Forensics at Central Missouri State University. She then received her Law Degree from University of Missouri-Kansas City in 1975 where she was first in her class and the editor in chief of the UMKC Law Review. She was an attorney at Stinson & Mag Law Firm in Kansas City for a few years. She then received her Masters in Law from the University of Michigan.

She taught in the law school at Tulsa University for 2 years before moving to the University of South Dakota where she was a Professor in the Law School. After retiring she returned to Garden City. She enjoyed playing bridge, reading her mystery and history novels and her dogs.

She is survived by her Sister- Sharon Cook of Garden City, Brother- James Etling of Garden City, 2 Nieces- Jennifer Scott of Garden City and Kara Cook-Tate of Killeen, Texas and Nephew- David Scott of Lawrence.

Funeral Service will be at 10:30 AM Wednesday at Garnand Funeral Home with Rev Bob Bates officiating. Burial will be in Valley View Cemetery in Garden City. Memorials are suggested to National Multiple Sclerosis Foundation in care of Garnand Funeral Home. Condolences may be posted at www.garnandfuneralhomes.com Theodore C. “Ted” Geisert (4/5/1925 – 11/6/2020) Theodore C. “Ted” Geisert died at his home peacefully on Nov. 6, 2020.

He was born April 5, 1925, on a farm near Elmo, Kansas, the son of Frederick Jacob and Martha Lauer Geisert.

He graduated from Chapman High School in 1943. Following graduation he obtained a farm deferment and spent a year working on his father’s farm before being drafted in the U.S. Army in August of 1944.

He served in the U.S. Army and fought in the Battle of Okinawa during WWII, continuing in the service until August of 1946.

Soon after returning home, he entered McPherson College where he led the Debate Team before graduating in 1949. He then entered Harvard Law School and received his law degree in June 1952.

He practiced law for six years in Wichita, Kans. with Fleeson, Gooring, Coulson and Kitch before moving to Kingman to open his own law firm where he remained a highly respected lawyer for the rest of his life.

On May 31, 1958, he was married to Alice L. Herman and the two of them began a family. They raised two sons, Matthew P. Geisert and Christopher F. Geisert and a daughter Sally A. Geisert.

During his lifetime, Ted remained a farmer at heart and used that passion combined with his love of animals to raise Ponies of the Americas.

Funeral services will be 2:00 p.m., Wednesday at the Kingman United Methodist Church. Live streaming of the service will be found on the YouTube Kingman United Methodist Church Channel. The family will receive friends from 5:00 p.m. to 7:00 p.m., Tuesday at the Livingston Funeral Home.

Burial will be in the Hoosier Cemetery. It’s recommended that facial masks and social distancing be practiced at the funeral home and the church.

Memorials may be made to the Kingman Community Hospital or McPherson College, both in care of the funeral home.

Robert A. Kumin (4/29/1947 – 10/12/2020) It is with great sadness and utter disbelief that the family of Robert A. Kumin of Lenexa, KS announce the passing of Robert A. Kumin on October 12th, 2020.

Bob was born on April 29, 1947 to the late Saul and Evelyn Kumin of Cleveland, Ohio. He graduated from Ohio State University in March, 1969 with a degree in Labor Economics. Bob continued his education at Ohio State University earing a Juris Doctor, cum laude, in June, 1972. He married the love of his life Carole Conant in May, 1969 in Cleveland, Ohio and have been happily married for 51 years. They were remarried in Las Vegas in May, 1994 by a fuller-figure Elvis.

Hallmark Cards brought Bob to the Kansas City area where he joined their legal department in 1972. He remained on staff at Hallmark Cards for two years after which he opened his own law firm specializing in creditors rights, collections, and bankruptcy. He is a member of multiple professional affiliations including American Bankruptcy Institute, American Bar Association, Bankruptcy and Insolvency Subcommittee, Johnson County Bar Association, Kansas City Bankruptcy Bar Association, Kansas City Metropolitan Bar Association and Missouri Bankers Association. Bob was the only creditor’s rights attorney appointed to the Kansas Bankruptcy Bench Bar in 2006.

Bob was an active member of Ohev Sholom Synagogue and served as president from 1986 to 1987. He always said Ohev Sholom Synagogue had the warmest, friendliest people and considered the members his extended family. He especially loved the kids and would entertain them with his Cookie Monster and Count Dracula impersonations. Bob was also a past president of his Homeowners Association and a volunteer at the JFS Food Pantry. His insatiable appetite for reading prompted him to become a volunteer reading coach for adults studying to get their GED. His hobbies were few in number but he was passionate about the ones he did enjoy such as reading, gardening when his back and knees permitted him to do so, visiting casinos, and working.

Cont’ d on Pg. 62 www.ksbar.org | January/February 2021 59

Now More Than Ever, Where You Bank Matters. appellate decisions

The Kansas Bar Foundation uses interest from IOLTA accounts to fund programs that provide civil representation to victims of domestic violence and programs that provide representation to children identified as in need of care.

If every Kansas lawyer moved to an approved IOLTA financial institution, it could mean thousands more in revenue to offer more legal services to underserved Kansans and to help protect the most vulnerable among us.

For more information on setting up an IOLTA account with one of our approved financial institutions, please visit https://www.ksbar.org/mpage/iolta

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www.ksbar.org | January/February 2021 61

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Cont’ d from Pg. 59

cess, and knew that disagreements, arguments, negotiations and compromise came with the territory.

He is survived by his loving wife and best friend Carole, two sons and daughters-in-law: Bradley and Tracy Kumin of Houston, TX and Jeffrey and Meg Kumin of Lenexa, KS as well as one grandson (Elijah) and five granddaughters (Tyler, Jonna, Aria, Sydney and Kylie) whom he will always cherish.

Bob also leaves behind two brothers and sisters-in-law: Harvey and Nancy Kumin of Cleveland, Ohio and Dr. Gerald and June Kumin of Naples, Fl as well as many more loving friends and relatives who will miss him very much. Condolences may be shared at www.louismemorialchapel.com. In lieu of flowers please send donations to: JFS Food Pantry, Kansas City Hospice House, ASPCA or Ohev Sholom. Private family services will be held at Mt. Carmel Cemetery.

Jim held leadership positions at the Kansas Democratic Party and the Sedgwick County Democrats. He was active in many campaigns, including Frank Theis for Senate, Dan Glickman for Congress and John Carlin for Governor of Kansas. Jim was close friends with the Docking family and enjoyed working on many an election with a Docking on the ballot. He worked hard on local legislative races over the years, and Ruth Luzzati was one of his favorites.

On a few occasions, Jim ran for office himself, usually as a distinct underdog because he believed voters should have a choice. While his races for State Senate, Mayor and Congress were not successful, he always spoke his mind, engaged in lively debate, and had memorable quotes for the media.

Jim took great pride in the three children he helped raise.

Family memories include cross county road trips, Thanksgivings in Muskogee, basketball games in the driveway, dinners at Connie’s Mexican Café and Sunday school at St. James.

After his parents passed away, Jim was reunited with his birth mother Vivian McLain. He enjoyed meeting newly discovered relatives and attended several family reunions with Vivian.

Both Jim and Mary Ann were active in the Episcopal Church. Long time members of St. Stephens, Jim knew all of his fellow parishioners by name. His neighbors in College Hill appreciated his desire to relive his newspaper boy days, and the Wichita Eagle was on the front porch after his morning walk. Some of the very special people in Jim’s life include his lifelong friend Dick Wilson, Jill Docking, and the Issa family.

Jim was preceded in death by parents Oscar and Clara Lawing, and Vivian McLain, and wife Mary Ann. He is survived by children Keith (Kimberly), Kirsten Spinelli (Anthony), Chris (Angie), stepchildren Jeff Harper (Susan), Jenny Pryor (Don), Gretchen Flatau (Art), Anne Payne, Curry Harper, Amy Newlin, (Eric), many, many, many grandchildren including Hélène, Hope, Emily and Christopher, and greatgrandchildren.

The family expresses sincere appreciation to his care givers at Amani Homes. Jim could not have been in a more welcoming, peaceful and safe place during the last stages of his long life. Thank you Esther and Peter.

There will be a celebration of Jim’s life for friends and family to come together and share memories and rejoice at a later date. The best way to honor Jim is to donate to the Fighting the Good Fight Jim Lawing Memorial Fund at the ACLU Foundation of Kansas, PO Box 917, Mission Kansas, 66201 or https://www.aclukansas.org/donate.

Jim Lawing (2/19/1937 – 11/8/2020) Jim Lawing, Attorney, Democrat, Episcopalian, Father, Grandfather and Friend to many, passed away peacefully on November 8, 2020 following a lengthy battle with Parkinson’s. A lifelong civil rights warrior, Jim leaves a lasting legacy.

Born on February 19, 1937 and raised in Okmulgee, Oklahoma by his adopted parents, Oscar and Clara Lawing, Jim was a boy scout, an award winning newspaper boy, and an honor student at Okmulgee High School. After earning a Bachelor’s Degree from Northeastern State University in Tahlequah, he went on to the University of Kansas as a student and teaching assistant earning his JD in 1965.

Jim married Karlin Church in 1964 and had three children together: Keith, Kirsten and Christopher. In 1990, he married Mary Ann Harper and grew his family instantly with her six children and what soon became many grandchildren and great-grandchildren.

Jim was a member of the Bar Association in Wichita for over 50 years, beginning his career in the Ratner Law Firm and primarily operating a solo practice for most of his career.

To sum up his generosity and commitment to the cause, a colleague once said “If you need a really good lawyer but cannot afford one, call Jim Lawing.”

Jim was a member of the national board of directors for the ACLU, and also an active leader in the ACLU of Kansas.

To recognize his career as a civil rights warrior, the ACLU of Kansas created the Jim Lawing Award in 2016 to honor defenders of the Constitution.

Jim’s passion was politics, and he was a proud and active Democrat. He served one term in the Kansas Legislature and helped lead the passage of a bill to outlaw pay toilets in Kansas. What became known as the “Free to Pee” bill was for Jim an issue of fairness, respect, decency and public health. While he held strong political beliefs, some of his closest friends were Republicans. Jim respected engagement in the political pro62

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obituaries

Kay Roberts Light (01/20/1932 – 12/3/2020) Kay Roberts Light of Winfield, KS, died on December 3, 2020 at Cumbernauld Village in Winfield. She was born to Lloyd & Laverne Roberts on January 20, 1932. After graduating high school in 1951, Kay attended Kansas University in Lawrence, Kansas. After graduating with an AB in 1955, she continued her education at KU and graduated with her JD in 1956. She also passed the bar in 1956. Kay returned home to Winfield to practice law with her father, Lloyd Roberts, at Roberts & Roberts Law Firm. On March 23, 1960, she married Miles Bradley Light.

Kay was very involved in the Bar Association in the state of Kansas; she was the president of the Cowley County Bar Association in 1961. Kay was also very involved in the Episcopal Church. She served on the vestry at Grace Episcopal Church, Winfield, and served many years on the Commission on Ministry in the Diocese of Kansas. She also served on the Board of Trustees of the Episcopal Seminary of the Southwest in Austin, TX, during that time. Kay also served on the H.L. Snyder Research Foundation board for several years.

Kay is survived by her daughter, Melissa S. Light, Melissa’s partner, Mark A Meyer, and Mark’s daughter, Bethany A Meyer, of Sterling, CO. Kay is also survived by her brotherin-law, John Light, of Winfield; a sister-in-law, Ann Burns, of River Ridge, LA; and several nieces & nephews, including Susie & Steve Light of Winfield; Stanley Light of Dallas, TX; Scott & Marcia Burns of Urbana, IL; Elizabeth Burns of Chapel Hill, NC; David & Mari Burns of River Ridge, LA; and Tom & Lyn Light of Bedford, TX. A service will be held at Grace Episcopal Church at a later date, when the restrictions from COVID-19 have been lifted. In lieu of flowers, the family asks that memorials be sent to either the Loyette Olson Outreach Fund or the general Outreach Fund at Grace Episcopal Church in Winfield, KS. Arrangements are through Shelley Family Funeral Home of Winfield.

Kay was an accomplished woman of stature and dignity, accompanied by a great sense of humor. She will be sorely missed by her family and many friends.

Tyler Charles Lockett (12/7/1932 – 11/28/2020) Tyler Charles Lockett, 87, passed away Saturday, November 28, 2020 at a local hospital-a casualty of COVID-19.

Tyler was born in Corpus Christi, Texas on December 7th, 1932 to Tyler and Evelyn (LeMond) Lockett. The family moved to Wichita, Kansas before his first birthday. He attended public schools and graduated from Wichita North High School in 1951. In 2019, Wichita North High School honored him by inducting him into their Hall of Fame.

He went to Washburn University as a student athlete, pledged Phi Delta Theta, and graduated in 1955 with a BA

degree. After graduation, Tyler served four years in the US Navy as a pilot and an Air Intelligence Officer in the West Pacific; he continued to fly in the Naval Reserves and retired a Captain in 1986. Tyler returned to Washburn and graduated from the law school in January 1962.

Returning to Wichita, he became an associate in the firm of Ratner, Maddox, and Ratner for two years. Between 1964 and 1966, Tyler was Deputy County Attorney. He was engaged in the private practice of law from 1964 until Governor Robert Docking appointed him Judge of the Court of Common Pleas in 1971. In 1977, Judge Lockett was elected judge of the Sedgwick County District Court. For three years, he served as the presiding judge of the criminal department for the 18th Judicial District. Governor John Carlin selected him to become the 62nd Justice of the Kansas Supreme Court in 1983. Justice Lockett served the State of Kansas for 19 years and retired from the court in 2002.

Tyler received numerous awards from law organizations and the military. His awards include: The Kansas Bar Association Certificate of Appreciation, Kansas Bar Association Achievement Award for Outstanding Service in Advocacy Trial Techniques and Tactics, Liberty Bell Award for Outstanding Citizens Work in Law presented jointly by both the Eighth Judicial District and the United States Army Fort Riley, and the Smiling Bull Award.

Tyler married Sue Warburton on November 3, 1961 in Fairway, KS. They made their home in Wichita where they raised two sons Charles, and Patrick. The family moved to Topeka in 1983 when he was appointed to the Supreme Court. Tyler enjoyed gardening, wood working, the family pets, cribbage, bridge, handball at the YMCA, and travel. Tyler and Sue especially enjoyed taking cruises with their close friends; they had taken over 30 cruises together. He found joy in telling and hearing jokes, music, and being a husband, father, brother, and uncle.

Tyler is survived by his son, Patrick, grandson, Cody Lockett, Cody’s significant other, Kallee Fessler, and their daughter, Tyler’s great-granddaughter, Ryann Lockett, and two brothers, Coleman, and Grant. He is also survived by many nieces and nephews.

Tyler was predeceased by his wife of 58 years, Sue, son, Charles, brother, Hal, and parents Tyler and Evelyn.

Services were held at Topeka Presbyterian Church on December 7th at 1PM and streamed online at: https://iframe. dacast.com/b/173400/c/552656 Tyler was cremated and inurned in Mount Hope Cemetery, Topeka, Kansas.

Memorial contributions may be made to CASA of Shawnee County, 501 SE Jefferson, Suite 2002 Topeka, KS 66607

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Judge Gregory L. Waller (10/17/1948 – 12/2/2020) The Honorable Judge Gregory L. Waller passed away of natural causes on December 2, 2020 at the age of 72. He was born in Hutchinson, Kansas on October 17, 1948 to Ila Mae and Charles Waller. In addition to being a committed civil servant and community leader, he was a devout Christian, a family man and a friend. Our fondest memories of him include his determination, humbleness, kind heart, strength and sense of humor. He loved basketball, football, antiques, music, tools and old vehicles. Judge Waller was also a history buff. He was an avid lover of shows about history, history books, and he spent hours researching his own family history.

He especially enjoyed doing research about his grandfather Reuben Waller who was a Buffalo Soldier.

Granddaughter Ceslie Parker-Waller said “He may have been my grandfather by blood, but he will always be my father by heart and spirit.” When asked what he would like to say to people about his grandfather, Jordan McGuire said “He was kind and intelligent.”

Judge Waller grew up in Hutchinson and graduated from Hutchinson High School. He later attended Hutchinson County Community College, where he received his Associate of Arts in Pre-Law Studies in 1968. He then attended Washburn University, where he received his Bachelor of Arts in History and Political Science, graduating with honors in 1970 and his Juris Doctorate in Law in 1972.

Judge Waller married Dr. Mary Waller (now deceased) on November 16, 1974, and together in love they had five children. He began his law career as a partner in Hays & Waller.

Later, he worked as a Sedgwick County Assistant District Attorney from 1975-1993. As a prosecutor, he won most of the cases that he was assigned. Nola Foulston, a former boss and colleague remembers him as “Someone who liked to fix things. He was a skilled prosecutor, who was willing to take on hard cases.” In 1993 he was appointed by Governor Joan Finney (and later elected) to serve as a District Court Judge in the State of Kansas, where he served for almost 22 years.

After becoming a widower, Judge Waller was blessed with love again and married Darla Waller on November 11, 2000.

In addition to his marriage to Darla, he inherited another son, De’Marcus McCrary, and they developed a special relationship. Darla and Gregory were each other’s best friends, and blessed to live a life filled with much love and happiness together.

During his career, Judge Waller was one of only a few African Americans to serve the State of Kansas as both a prosecutor and a judge. He served as a judge for 21 years, and at that time he had been one of the longest serving judges in the county. He was one of only three Black district court judges in Kansas. Judge Waller’s colleague and friend Marc Bennett said “I never heard him talk about it as some sort of mission he had, but I know he was proud to be on the bench and represent an underrepresented population of the community.

It was not lost on him to be one of the few African American judges on the court.”

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Judge Waller oversaw several cases during his career. One major case that had international recognition was the BTK case. In relation to Rader’s plea in the case, Marc Bennett stated “Rarely does the judge take center stage, unless they do something wrong. But this was a time where Judge Waller took center stage, because he said ‘I need more facts’ and drew out the information from Rader… He did a masterful job of it.”

Judge Waller retired in 2015 but continued to work parttime as a Pro Tem Judge/Judiciary Advisor. In this role, he oversaw protection from abuse cases, protection from stalking cases, and small claims cases for the 18th Judicial Courts.

He was an active member of both his church and the community. Judge Waller was also a devoted catholic. He was a member of Magdalen Parish, and a former member of Holy Savior Catholic Church. He served on numerous boards and councils, and was a member of several organizations, including African American Attorneys; African American Catholic Council; African American Democrats; CASA; Guadalupe Clinic; Kansas Bar Association; Kansas District Judges Association; Washburn University Foundation; Washburn University Law School Alumni Board and Alumni Association; Wichita African American Council of Elders, Wichita Bar Association; Wichita Bar Association Racial Justice Task Force, and Young Democrats. He was also a former member of the NAACP, Jack and Jill, and he was a Kappa Alpha Psi Alumni. Judge Waller was inducted into The Kansas African American Museum’s Trailblazers Hall of Fame in 2000.

He is preceded in death by his mother Ila Mae Waller; father Charles Waller; wife Mary Clark Waller; and brother Marc Waller. He is survived by his wife Darla Waller (Wichita, KS), children Rickae Strack (Wichita, KS); Richard Waller (Wichita, KS); Régan Waller and husband Bret McGuire (Georgetown, TX); De’Marcus McCrary (Wichita, KS); Ryann Waller and husband Erick Mulondayi (Kansas City, KS); Robyn Waller (Wichita, KS); grandchildren Miles Seeley-Pem (Lawrence, KS); Shaun-Michael Strack; Saryn Strack; Ceslie Parker-Waller (all of Wichita, KS); Jordan McGuire; Josiah McGuire (both of Georgetown, TX); sister Sandra Dawson; brother Stan Waller and wife Debbie Waller (all of Hutchinson, KS), as well as several nieces, nephews and extended family members.

A viewing open to the public was held on December 19, 2020 from 1-5 p.m. at Jackson Mortuary in Wichita, KS. Due to Covid-19, a celebration of Judge Waller’s life will be held at a later date.

In lieu of flowers, please consider making a donation to the Judge Gregory L. Waller Memorial Fund. Memorial funds will be used to assist students with educational expenses, children and families in need, and children with Autism. Contributions will go to organizations such as CASA, Cornerstones of Care, Guadalupe Clinic, Hutchinson High School, Hutchinson Junior College, and Washburn University. Donations may be made payable to: Judge Gregory L. Waller Memorial Fund Southwest National Bank 225 S. Towne East Mall Dr., Wichita, KS 67207

Ronald P. Williams (6/28/1947 – 1/4/2021) Ronald P. Williams, 73, attorney, passed away Monday, January 4, 2021, from complications due to COVID-19.

Ron was born June 28, 1947, in Tulsa, Oklahoma, to Bessie Reon (Thomason) and Donald Williams. He served in the Air Force during the Vietnam War on the flight crew of a C-130 delivering supplies to Southeast Asia. Following his time in the service, he attended and taught at Spartan School of Aeronautics. He received his Bachelor’s degree in history and political science in 1974 from Southwestern College and graduated from Washburn Law School in 1977. Later, Ron received his MBA from Southwestern in 2002. Mr. Williams practiced law with the Topeka law firm of Shaw, Hergenretter, Quarnstrom and Wright from 1977-1980. Moving to Wichita to practice in the area of aviation law, he joined the law firm of McDonald, Tinker, Skaer, Quinn and Herrington from 1980-1984, and then became a lawyer with the firm known at that time as Morrison, Hecker, et.al. from 1984-2012. He enjoyed a distinguished career and was an accomplished trial attorney. He was a member of the American, Kansas, and Wichita Bar Associations. Ron’s passion of flying and his love of singing were lifelong pursuits. He was often seen at the airports around the city and on stage singing in Bar Shows, for fundraisers, weddings, funerals and church services. For 30 years he enacted the role of Pontius Pilate in the Living Pictures of Easter at First Church of the Nazarene. He taught

adult Sunday School for over 30 years. Ron loved to fly, to attend OU football games and WSU basketball games, and to spend time with family and friends. He loved the Lord Jesus Christ and was His ambassador for as long as he walked on this earth. Ron served on many boards, including Southwestern Board of Trustees, First Nazarene Church Board, Kansas Aviation Museum, and Covenant Housing Board to name a few. Preceding him in death were his parents, Donald and Reon Williams. Survivors: wife, Bobbi; children, Heather (Eric) of Wichita, Brian (Jenice) of Great Bend, Dr. Amy, Marianne (Alba) and Don Tibbits all of Wichita; 8 grandchildren and 2 great-grandchildren. Viewing was from 1:009:00 p.m., Saturday, January 9 and Sunday, January 10, with family present from 6:00-8:00 p.m. both days, at Downing & Lahey Mortuary West. Please wear masks and observe social distancing. Due to Covid restrictions, a private family service was live streamed, 10:00 a.m., Monday, January 11, at www.dlwichita.com. Burial will be at Resthaven Cemetery in Wichita. Memorials established with Covenant Housing Corporation, 8415 E. 21, #100, Wichita, KS 67206; Kansas Aviation Museum, 3350 S. George Washington Blvd., Wichita, KS 67210; Southwestern College, Attn: Institutional Advancement, 100 N. College St., Winfield, KS 67156 and Harry Hynes Memorial Hospice, 313 S. Market, Wichita, KS 67202. www.dlwichita.com

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ORDER OF DISBARMENT IN RE ADEBAYO OGUNMENO NO. 122,867—DECEMBER 11, 2020

JURISDICTION IN RE ESTATE OF LENTZ SHAWNEE DISTRICT COURT—COURT OF APPEALS IS REVERSED, CASE REMANDED TO COURT OF APPEALS NO. 118,307—DECEMBER 11, 2020

FACTS: An original and an amended complaint were filed against Ogunmeno in 2019; he failed to respond to either complaint. A hearing panel determined that Ogunmeno violated: KRPC 1.1 (competence); 1.3 (diligence); 1.4 (communication); 1.16 (declining or terminating representation); 3.1 (meritorious claims and contentions); 3.2 (expediting litigation); 3.3 (candor toward the tribunal); 3.4 (fairness to opposing party and counsel); 8.1 (bar admission and disciplinary matters); 8.4 (misconduct); Rule 208 (attorney registration); and Rule 211(b) (timely answer to formal disciplinary complaint). The charges stemmed from a complaint Ogunmeno filed in federal district court alleging illegal and improper behavior by the judiciary in his county. Filings in the suit included an altered email which changed a judge's words. The action was ultimately dismissed, and Ogunmeno was sanctioned under Rule 11 for his actions. Ogunmeno also failed to properly initiate a lawsuit by serving the defendant. His client ultimately prevailed in a claim against him for legal malpractice. Multiple clients filed disciplinary complaints against Ogunmeno, but he never responded to inquiry letters from the Disciplinary Administrator.

HEARING PANEL: The hearing panel found multiple instances of Ogunmeno's lack of competence and diligence. He also wholly failed to participate in the disciplinary process.

Ogunmeno's actions caused significant harm to his clients and to the legal system. The hearing panel recommended discipline of disbarment.

HELD: Ogunmeno failed to answer the formal disciplinary complaint and failed to appear at the final hearing. Due to a lack of objection the factual findings are deemed admitted. After careful consideration, the court agreed. Ogunmeno is disbarred.

FACTS: Lentz died in 2012, leaving directions to equally divide his estate between his three daughters. Lana Lentz was appointed executor. Lana petitioned for final settlement in 2015 but her sister, Diann, opposed the settlement and alleged that Lana had mismanaged the estate. Lana resigned as executor and the third sister, Marilyn, took over. Marilyn petitioned for a new final settlement in 2016, but Diann objected. The district court held a hearing and approved the settlement over the objections. The journal entry was filed on December 30, 2016. Twenty-eight days later, Diann filed two motions asking for reconsideration under K.S.A. 60-260(b) (1) and (2). The motions were denied in June 2017 and Diann appealed. The Court of Appeals dismissed the appeal for lack of jurisdiction because Diann's post-trial motions were filed under K.S.A. 60-260, which does not toll the time in which to file a notice of appeal. The panel went on to note that even if there was jurisdiction, it appeared that Diann would lose on the merits of her claims. The Supreme Court granted Diann's petition for review.

ISSUE: (1) Jurisdiction HELD: Motions filed under K.S.A. 60-259 toll the time for filing a notice of appeal; those filed under K.S.A. 60-260 do not. Diann's motion to reconsider did not reference K.S.A. 60-259, but she argued on appeal that it is properly construed as a motion filed under that statute. The substance and timing of her motions support Diann's argument that— despite the text of the pleadings—the motions should be construed as ones filed under K.S.A. 60-259. Because the notice of appeal clock stopped while the motions were considered, Diann's notice of appeal was timely, and the Court of Appeals erred by dismissing the appeal. Because the Court of Appeals did not directly address the merits of Diann's arguments, the case must be remanded for further appellate proceedings. www.ksbar.org | January/February 2021 67

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CONCURRENCE: (Luckert, C.J., joined by Biles and Stegall, JJ) The Court of Appeals erred when it tangentially discussed the relative lack of merit to Diann's appeal. Once it determined there was no jurisdiction the appeal should have been dismissed without further comment. On remand, a different panel should decide the case on its merits.

STATUTE: K.S.A. 2019 Supp. 60-259(f), -260(b), -2103(a) STATUTORY INTERPRETATION—WORKERS COMPENSATION JOHNSON V. U.S. FOOD SERVICE WORKERS COMPENSATION BOARD—COURT OF APPEALS IS REVERSED, BOARD IS AFFIRMED NO. 117,725—JANUARY 8, 2021

FACTS: Johnson was injured in the course of his employment with U.S. Food Service. After treatment, Johnson was released with a 6% whole person impairment. Johnson appealed to the ALJ, arguing that the Kansas Legislature's inclusion of the Sixth Edition of the American Medical Association Guides was unconstitutional because it resulted in a lower impairment rating, depriving workers of the adequate substitute remedy contemplated by the Kansas Constitution Bill of Rights. Both the ALJ and the Workers Compensation Board of Appeals refused to address Johnson's claim on grounds that they did not have the authority to find a statute unconstitutional. Johnson appealed, and the Court of Appeals agreed that the adoption of the Sixth Edition of the AMA Guides meant that workers no longer received an adequate remedy, in violation of section 18 of the Kansas Constitution Bill of Rights. The Supreme Court granted U.S. Food Service's petition for review.

ISSUE: (1) Constitutionality of the use of the Sixth Edition of the AMA Guides HELD: The statute at issue can be read to leave intact the requirement that impairment be established by competent medical evidence. The Sixth Edition of the AMA Guides is meant to serve as a starting point for the consideration of competent medical evidence. Because the statute can be construed in a way that renders it constitutional, the court has a duty to do so.

STATUTES: Kansas Constitution Bill of Rights, section 18; K.S.A. 2019 Supp. 44-510e(a)(2)(B) DAMAGES—MANDATE RULE BUILDING ERECTION SERVICES COMPANY, INC. V. WALTON CONSTRUCTION COMPANY, INC. JOHNSON DISTRICT COURT—COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART, DISTRICT COURT IS REVERSED, CASE REMANDED NO. 117,839—NOVEMBER 20, 2020

FACTS: This case has a lengthy procedural history involving 10 years of litigation surrounding faulty construction. It is clearly established that Walton Construction has prevailed against Building Erection Services Company, Inc. and the only issue remaining is damages. The first attempt to set 68

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damages was reversed by the Court of Appeals and remanded for lack of substantial competent evidence. The district court made a second attempt and a different panel of the Court of Appeals reversed, again finding a lack of substantial competent evidence. Neither party petitioned for review of that decision. This appeal involves the third attempt at a damage award. The district court ordered BESCO to pay a higher percentage of damages plus attorney fees that the Court of Appeals reversed in the second appeal in addition to fees that Walton accrued during the continued litigation. On appeal, a third panel of the Court of Appeals reversed the damages award and attorney fee award for failure to abide by the law of the case and mandate rules. The panel declined to remand the case for another attempt at figuring out damages. The Supreme Court granted Walton's petition for review.

ISSUES: (1) Application of the mandate rule; (2) substantial competent evidence to support third award HELD: The mandate from the first appeal required the district court to apportion damages based on BESCO's actual faulty work under the contract and the actual costs of remediation attributable to BESCO's work. After the first remand, the second appeal not only reversed the district court's damage findings but also ruled that there was no nexus between the attorney fee award and BESCO's scope of work. Because neither party petitioned for review, the mandate from the second appeal required the district court to again determine which portion of the remediation costs and attorney fees were attributable to BESCO's work. The third award, which increased the percentage of damages BESCO was required to pay and added attorney fees, violated the mandate rule. There is no exception for district courts to circumvent the mandate of a higher court. There is no need to determine whether substantial competent evidence supported the third damage award because the case must be remanded. The Court of Appeals erred when it held that the case need not be remanded for further damage findings.

STATUTES: No statutes cited.

Criminal DUI—EXCLUSIONARY RULE CITY OF KINGMAN V. ARY KINGMAN DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED NO. 114,413—NOVEMBER 20, 2020

FACTS: Ary was involved in a one-vehicle car accident in 2014. The investigating officer noticed signs of impairment and arrested Ary for DUI. Ary received the implied consent advisories through the DC-70 form and agreed to take a blood alcohol test, which showed a result over the legal limit.

Ary was convicted in municipal court and appealed to district court. There, he asked the district court to suppress the blood test results as unconstitutional because law enforcement did not get a warrant prior to the test. The district court denied the motion and Ary was convicted after a bench trial. On ap-

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peal, the Court of Appeals ruled that the warrantless blood test was unconstitutional. But the panel held that the goodfaith exception to the exclusionary rule saved the search. The Supreme Court granted Ary's petition for review. After the petition was granted but before it could be heard, the Supreme Court ruled in State v. Perkins that the good-faith exception to the exclusionary rule allowed courts to consider evidence from breath tests obtained in reliance on the unconstitutional implied consent statute. Ary acknowledged the holding but asked the court to revisit it.

ISSUES: (1) Application of the good-faith exception HELD: The exclusionary rule is a judicially created remedy.

Perkins addressed breath tests so is not completely controlling here, but the distinction is not important. When Ary was arrested, the officer had no way to know that the implied consent statute would be struck down two years later. And the implied consent statute was not so clearly unconstitutional that a reasonable officer should have known that it was unconstitutional and refused to enforce it. There is no reason to depart from Perkins and its holding is affirmed. The results of Ary's blood test were properly admissible under the goodfaith exception to the exclusionary rule.

CONCURRENCE: (Stegall, J.) The majority's conclusion is correct. But it is incorrect to find that the search was unconstitutionally coerced.

STATUTES: K.S.A. 2014 SUPP. 8-1025; K.S.A. 2012 SUPP. 8-102

HELD: Prosecutor’s comments were not erroneous. In context the remarks were not an appeal to community interests but rather an effort to impress upon the jury the legal reality that a defendant cannot use deadly force based on subjective fear alone. Although close to the line, the comments are more like those in State v. Adams, 292 Kan. 60 (2011), and State v.

Finley, 273 Kan. 237 (2002)(Finley II).

Ample evidence in this case for a rational fact-finder to conclude beyond a reasonable doubt that Buck-Schrag did not act in self-defense.

Jury instructions as a whole fairly and accurately stated the law. Arguably the instructions could have been clearer if they parroted the statutory language, but Buck-Schrag points to no authority suggesting that instructions must follow the exact language of the statute.

Cumulative error doctrine inapplicable where no error is found.

Identical offense argument is not considered. State v. Gray, 311 Kan. 164 (2020), rejected argument that K.S.A. 2019 Supp. 21-6820(e)(3) requires an appellate court to review an identical offense argument for first time on appeal.

Under facts in case, district court satisfied K.S.A. 224513(b) and the directive in State v. Robinson, 281 Kan. 538 (2006).

STATUTES: K.S.A. 2019 SUPP. 21-5108, -5108(C), -5222, -6820(E)(3); K.S.A. 22-451

APPEALS—CRIMINAL PROCEDURE—EVIDENCE—JURY INSTRUCTIONS—SENTENCING STATE V. BUCK-SCHRAG SHAWNEE DISTRICT COURT—AFFIRMED NO. 121,203—DECEMBER 18, 2020

APPEALS—APPELLATE PROCEDURE— CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— EVIDENCE—STATUTES STATE V. CARTER SEDGWICK DISTRICT COURT—AFFIRMED NO. 120,103—DECEMBER 18, 2020

FACTS: Jury convicted Buck-Schrag of first-degree felony murder, criminal discharge of a firearm at an occupied vehicle, aggravated assault, and criminal possession of a firearm.

Sentence included payment of $7,000 attorney fees to reimburse Board of Indigent Services. On appeal Buck-Schrag claimed: (1) prosecutor’s closing argument erroneously persuaded jury to convict to protect the community; (2) State failed to provide sufficient evidence to disprove beyond a reasonable doubt that Buck-Schrag shot the victim in selfdefense; (3) clear error to give standard PIK instruction on affirmative defense because it did not fairly and accurately instruct on affirmative defenses as provided in K.S.A. 2019 Supp. 21-5108(c); (4) cumulative error denied him a fair trial; and raised for first time on appeal (5) district court should have imposed a lower sentence based on the alternative conviction of reckless second-degree murder which in this case was identical to felony murder; (6) error to asses attorney fees without considering Buck-Schrag’s financial resources or burden the fees would place on him.

ISSUES: (1) Prosecutorial error; (2) sufficiency of the evidence; (3) jury instructions; (4) cumulative error; (5) sentencing—identical offense doctrine; (6) attorney fees

FACTS: Carter was convicted of first-degree murder, criminal discharge of a firearm, and criminal possession of a firearm. During trial, Carter raised no objection to State’s alibi-impeachment testimony or to State’s evidence of gang participation and activity. Carter appealed claiming in part he was denied right to public trial when courtroom was filled with prospective jurors during voire dire such that access to the public was not available. Motion for remand to district court granted on this claim. District court held evidentiary hearing and determined the voir dire proceedings took place in open court. On appeal Carter claimed: (1) he was denied right to public trial because there was no space accommodation for family members and public; (2) error to allow State to impeach Carter’s alibi testimony; (3) error to allow State’s evidence of gang activity; (4) error to allow State’s expert witness testimony about what Carter meant in a pre-trial prison e-mail Carter; and (5) felony-murder statute creates an impermissible mandatory presumption of intent to kill that invades province of the jury.

ISSUES: (1) Right to public trial; (2) evidence impeaching alibi testimony; (3) evidence of gang activity; (4) expert teswww.ksbar.org | January/February 2021 69

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timony interpreting carter’s email; (5) impermissible mandatory presumption—felony-murder statute HELD: No violation of Carter’s right to a public trial. Trial court’s determination that voir dire proceeding was open was reasonable and supported by substantial competent evidence.

Trial court took no affirmative steps to exclude public from the courtroom; attorneys for both parties repeatedly assured trial judge that the court did not need to take special measures to enable members of the public to observe the proceeding; and defense counsel expressly told the court that it had been an open trial throughout.

Alibi impeachment evidence claim is not properly before the court. Exceptions to K.S.A. 60-404 preservation requirement for raising issues on appellate review do not come into play in context of admissibility of evidence.

Gang evidence claim is defeated by Carter’s failure to make a contemporaneous objection. As explained in State v. Ballou, 310 Kan. 591 (2019), Carter’s pretrial objection alone is not timely for purposes of K.S.A. 60-404.

No abuse of trial court’s discretion in admitting expert testimony about the meaning of Carter’s e-mail. Carter did not object to expert’s qualifications or the reliability of expert’s opinion testimony, and Carter’s competing interpretation of the e-mail demonstrates relevance of expert’s testimony.

Claim of impermissible mandatory presumption of intent to kill is defeated by State v. Patterson, 311 Kan. 59 (2020) (“The Kansas felony-murder rule does not operate as an unconstitutional conclusive presumption that invades the jury’s province.”)

STATUTES: K.S.A. 2019 SUPP. 22-3420(D), 60-456, -456(B); K.S.A. 60-404 APPELLATE PROCEDURE—CONSTITUTIONAL LAW— CRIMINAL LAW—EVIDENCE—MOTIONS—SEARCH AND SEIZURE STATE V. DAINO JOHNSON DISTRICT COURT—REVERSED AND REMANDED COURT OF APPEALS—AFFIRMED IN PART, REVERSED IN PART NO. 120,824—NOVEMBER 13, 2020

FACTS: Officers investigating the smell of marijuana knocked on the door to Daino’s apartment and asked to step in to write a ticket. Daino nodded, opened the door wide, and gestured entry. Officers entered and arrested Daino upon discovery of extensive drug evidence. Daino filed motion to suppress claiming the warrantless search was illegal, and challenging the officers’ “knock-and-talk,” their entry into his apartment, the search of his bedroom, and the admissibility of his statements to the police. Ruling only on Daino’s challenge to officers’ entry into the apartment, district court granted the motion citing State v. Poulton, 37 Kan.App.2d 299 (2007), aff’d in part, rev’d in part 286 Kan. 1 (2008), as prohibiting implied or nonverbal consent under any circumstances. State filed interlocutory appeal. Court of Appeals 70

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reversed, holding Daino’s nonverbal conduct unequivocally expressed his voluntary consent. 57 Kan.App.2d 653 (2020).

Daino’s petition for review granted to determine whether Kansas law forecloses consent through nonverbal conduct.

ISSUE: (1) Consent for warrantless search—nonverbal conduct HELD: Panel’s decision is affirmed in part. Properly construed, Poulton’s use and definition of “implied consent” must be limited to the “inaction or silence” exhibited under facts of that case. District court committed legal error by granting the motion to suppress based on an erroneous conclusion that Kansas law precludes an individual from communicating valid consent through nonverbal conduct. Kansas and federal cases are reviewed.

Panel’s decision is reversed in part and case is remanded to district court for a new hearing under appropriate legal standards, and for consideration of Daino’s additional challenges. Panel exceeded its scope of review by concluding Daino voluntarily consented, free from duress or coercion. The voluntariness of Daino’s confession is a question of fact to be determined by the district court under the totality of the circumstances.

STATUTES: K.S.A. 2019 Supp. 21-5709(b)(1); K.S.A. 654105(d)(17), -4107(d)(1) CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— SENTENCING STATE V. GALES EDWARDS DISTRICT COURT—REVERSED, SENTENCE VACATED, REMANDED COURT OF APPEALS—REVERSED NO. 119,302—DECEMBER 4, 2020

FACTS: Gales convicted in 2001 of intentional seconddegree murder and arson. In 2014 he filed motion to correct an illegal sentence arguing his 1976 California juvenile adjudication for burglary was improperly scored as a person crime. District court denied the motion. In unpublished opinion (Gales I), Court of Appeals vacated the sentence and remanded for resentencing to determine whether the prior burglary adjudication involved a dwelling under the modified categorical analysis articulated in State v. Dickey, 201 Kan. 1018 (2015)(decided while Gales’ appeal was pending). At 2018 hearing district court overruled Gales’ objection to his criminal history score and reimposed the original sentence.

Court of Appeals affirmed. State v. Gales, 57 Kan.App.2d 325 (2019)(Gales II). Review granted on Gales’ petition for review and on States’ conditional cross-petition.

ISSUE: (1) Scoring the California offense HELD: Under peculiar circumstances in this case, statutory rules for classifying Gales’ California crime result in an ambiguity. Kansas has both person and nonperson versions of the same crime while California statute is both indivisible and equally comparable to either Kansas version. Rule of lenity requires statute to be construed in Gale’s favor. Also, State v. Williams, 299 Kan. 870 (2014), requires comparison

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of only statutory elements without evidence surrounding the prior conviction. Panel’s decision is reversed, the sentence is vacated, and case is remanded for resentencing with the burglary adjudication to be scored as a nonperson offense.

STATUTES: K.S.A. 2018 Supp. 22-3504; K.S.A. 213110(7), -3715, -4709, -4711, -4711(d), -4711(e) APPELLATE PROCEDURE—CONSTITUTIONAL LAW— CRIMINAL PROCEDURE—EVIDENCE—MOTIONS— SEARCH AND SEIZURE—STATUTES STATE V. HEIM RENO DISTRICT COURT—AFFIRMED; COURT OF APPEALS—AFFIRMED NO. 115,980—NOVEMBER 20, 2020

FACTS: Officers investigating a 2015 vehicle crash gave Heim the statutorily required implied consent advisories.

A requested blood test was drawn at the hospital without a search warrant. Heim filed a motion to suppress the results as unconstitutional under Birchfield v. North Dakota, 579 U.S. __ (2016). District court denied the motion and found Heim guilty of DUI. Court of Appeals affirmed in an unpublished opinion, and rejected Heim’s new argument that the goodfaith exception to exclusionary rule did not apply. Heim’s petition for review was granted. Kansas Supreme Court subsequently held in State v. Perkins, 310 Kan. 764 (2019), that the good-faith exception allowed courts to consider evidence from breath tests obtained in reliance on the unconstitutional implied consent statute. Parties were directed to show cause why Perkins did not control outcome of the appeal.

ISSUE: (1) Good-Faith exception to exclusionary rule HELD: Applying Perkins to circumstances of this case, the good-faith exception applies and allowed the district court to consider results of a blood test for blood alcohol content even though Kansas Supreme Court would later hold that K.S.A. 2015 Supp. 8-1025 was unconstitutional. Legal developments about constitutional issues raised by implied consent laws and by blood alcohol testing of impaired drivers are reviewed up through Perkins, including cases defining blood alcohol testing as a search and cases discussing the good-faith exception.

Heim’s arguments for overturning Perkins are not persuasive. Court of Appeals did not err in applying the good-faith exception, and district court did not err in holding Heim’s blood test result was admissible.

CONCURRENCE (Stegall, J.): Agrees the good faith exception applies in this case. Disagree that the search was unconstitutionally coerced, citing his dissent in State v. Ryce, 303 Kan. 899 (2016).

STATUTES: K.S.A. 2015 Supp. 8-1001, -1025; K.S.A. 2014 Supp. 8-1025; K.S.A. 2013 Supp. 8-1025; K.S.A. 2012 Supp. 8-1025

APPEALS—APPELLATE PROCEDURE—MOTIONS— STATUTES STATE V. HOOKS SEDGWICK DISTRICT COURT—REMANDED NO. 119,881—JANUARY 8, 2021

FACTS: Kansas Supreme Court affirmed Hooks’ conviction on charges including first-degree murder, and district court’s decision to try Hooks as an adult. State v. Hooks, 251 Kan. 755 (1992). In July 2017 he filed pro se motion to correct an illegal sentence and argued for relief under K.S.A. 601507. District court summarily denied the motion in journal entry filed July 31, 2017. Hooks filed notice of appeal in November 2017 with letter stating he just received notice from district court clerk’s office that his motion had been denied, and that he would have filed timely notice of appeal if he had been notified then of the judgment. Kansas Supreme Court ordered Hooks to show cause why the untimely appeal should not be dismissed for lack of jurisdiction. Noting there was no designation in the journal entry that it was mailed or otherwise sent to him, Hooks argued court error caused the delay in filing the notice of appeal, and the appeal should be allowed under the unique circumstances doctrine.

ISSUE: (1) Appellate jurisdiction—untimely notice of appeal HELD: The unique circumstances doctrine is no longer an accepted source of appellate jurisdiction, but if Hooks is correct that he did not learn his motion was denied until after the time to file a timely notice of appeal had run, jurisdiction may be proper. District court did not make findings of fact regarding Hooks’ allegation that the untimely notice of appeal was the result of deficient service. Remand to district court is appropriate to determine date of compliance with K.S.A. 2019 Supp. 60-258 and Supreme Court Rule 134, along with other circumstances surrounding Hooks’ receipt of service or actual knowledge of the judgment.

STATUTES: K.S.A. 2019 Supp. 60-258, -2103(a); K.S.A. 22-3504, 60-1507 CRIMINAL PROCEDURE—EVIDENCE—SENTENCING— STATUTES STATE V. MCNABB LINN DISTRICT COURT—AFFIRMED NO. 120,390—JANUARY 8, 2021

FACTS: McNabb entered a no contest plea to charges including two counts of first-degree premeditated murder committed in 2016. He filed a downward departure motion from presumptive hard 50 sentences for the premeditated murder convictions, requesting concurrent hard 25 sentences. District court imposed consecutive hard 50 sentences, finding no substantial or compelling reason for departure. Citing evidence that he was a qualified candidate for parole at the earliest release date, McNabb appealed claiming district court abused its discretion in denying the downward departure motion.

ISSUE: (1) Sentencing HELD: McNabb’s hard 50 sentences are affirmed. He www.ksbar.org | January/February 2021 71

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failed to explain why a pre-2011 statute allowing a hard 25 sentence has any impact in case where murders occurred in 2016 with a hard 50 presumptive sentence for first-degree premeditated murder. District court’s decision on statutory mitigating factors as to McNabb’s lack of prior felonies, age, and mental capacity were reasonable. And no abuse of district court’s discretion in rejecting McNabb’s evidence of remorse and good character, or in ignoring State’s recommendation for concurrent hard 50 sentences.

STATUTE: K.S.A. 2019 Supp. 21-5402(b), -6620(c)(1)(A), -6623, -6625(a) APPEALS—APPELLATE PROCEDURE STATE V. OCHOA-LARA JOHNSON DISTRICT COURT—AFFIRMED; COURT OF APPEALS—AFFIRMED NO. 112,322—DECEMBER 4, 2020

FACTS: State charged Ochoa-Lara with two counts of identity theft on charges covering time before and after 2012 changes to the identity theft statute. Ochoa-Lara filed motion to dismiss arguing the charges were preempted by federal immigration statutes. District court denied the motion and found Ochoa-Lara guilty on both charges. Ochoa-Lara appealed arguing the charges were preempted by federal law, and also claimed for first time the charges were multiplicitous. Kansas Court of Appeals affirmed the conviction and sentence, rejecting the preemption argument and finding Ochoa-Lara failed to preserve multiplicity issue for appellate review. State v. Ochoa-Lara, 53 Kan.App.2d 86 (2015). Kansas Supreme Court reversed on preemption grounds without addressing multiplicity. State v. Ochoa-Lara, 306 Kan. 1107 (2017). U.S. Supreme Court reversed and remanded. Kansas v. Garcia, 589 U.S. __ (2020)(state prosecution for identity theft is not preempted by federal law). Remaining issue is whether the two convictions for identity theft are multiplicitous.

ISSUE: (1) Appellate review HELD: Ochoa-Lara failed to preserve the multiplicity issue for appeal. He concedes he did not raise the multiplicity claim in district court, and fails to argue or explain why the issue can be considered for first time on appeal. The convictions are affirmed.

STATUTE: K.S.A. 2011 Supp. 21-6107 CRIMINAL PROCEDURE—SENTENCING—STATUTES STATE V. PARKS RENO DISTRICT COURT—AFFIRMED NO. 121,832—DECEMBER 4, 2020

FACTS: Parks convicted on 1997 no contest plea to firstdegree murder of his wife in 1997. District court applied preKansas Sentencing Guidelines Act procedure to impose life sentence, but also mentioned the first-degree murder would have been an off-grid crime under the guidelines. In 2019 Parks filed motions to correct an illegal sentence challenging the classification of a prior New Mexico conviction for at72

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tempted first-degree murder as a person crime, and arguing his first-degree murder conviction should have been treated as an “unclassified felony” because 1978 statute did not distinguish between person and nonperson crimes. District court summarily denied relief. Parks appealed.

ISSUE: (1) Motion to correct illegal sentence HELD: Parks’ life sentence is not illegal. Sentencing guidelines do not apply to the 1978 crime and the life sentence imposed is consistent with statutory requirements as they existed when he committed the first-degree murder.

STATUTES: K.S.A. 2019 Supp. 21-6802(c), 22-3504; K.S.A. 1990 Supp. 21-3401, -4501 CONSTITUTIONAL LAW—CRIMINAL LAW—CRIMINAL PROCEDURE—EVIDENCE— JURY INSTRUCTIONS STATE V. STAFFORD SEDGWICK DISTRICT COURT—AFFIRMED NO. 120,481—DECEMBER 23, 2020

FACTS: Stafford convicted in part of premeditated firstdegree murder. During trial, forensic nurse Warren testified about her earlier medical evaluation and treatment of victim for injuries inflicted by Stafford, and that testimony included direct quotes from victim. On appeal Stafford claimed the district court erred when: (1) it included additional language in the standard premeditation PIK instruction; (2) failed to instruct jury on heat of passion voluntary manslaughter; (3) admitted impermissible hearsay evidence through Warren’s testimony; and (4) cumulative error denied him a fair trial.

ISSUES: (1) Jury instruction—premeditation, (2) jury instruction—heat of passion voluntary manslaughter, (3) confrontation clause—witness testimony, (4) cumulative error HELD: District court did not err when it included additional language in the premeditation instruction. The instruction, cut straight from State v. Bernhardt, 304 Kan. 460 (2016), was both legally and factually appropriate in this case.

When facts demonstrate a criminal defendant could have formed premeditation after an initial confrontation, but before the final blow, a premeditation instruction may explain that premeditation does not have to be present before a fight, quarrel, or struggle begins.

District court did not err when it failed to instruct jury on heat of passion voluntary manslaughter. That instruction would have been legally appropriate but was not factually appropriate here. Mere words alone cannot constitute sufficient provocation for a voluntary manslaughter instruction, and record shows the quarrel between Stafford and the victim was long and protracted and did not suddenly arise.

Warren’s testimony did not violate Confrontation Clause.

On facts in this case, Warren was not a state agent and there was a medical purpose to the examination. Victim’s statements made through Warren were not testimonial and did not implicate the Confrontation Clause.

Cumulative error doctrine not application where no error is found.

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DISSENT (Lukert, C.J.): Citing her dissent in Stafford (decided this same date) and Bernhardt, would hold the confusing and contradictory jury instruction which defined premeditation was erroneous and could have misled the jury.

Language of five circumstances included in the instruction was sufficient to explain to one with law degree the limited purpose of the circumstances, but would not have been apparent to the average reasonable juror. Stafford entitled to new trial in which a clear instruction guides the jury.

STATUTES: K.S.A. 2019 Supp. 21-5404(a)(1), 22-3414(3), 60-460(d)(3), -460(l)(1), -460(l)(2), 22-3414(3); K.S.A. 2016 Supp. 21-5402(a)(1), -6412(a)(1), -6412(b)(1) APPELLATE PROCEDURE—CONSTITUTIONAL LAW— CRIMINAL PROCEDURE —EVIDENCE—JURY INSTRUCTIONS—STATUTES STATE V. STANLEY JOHNSON DISTRICT COURT—AFFIRMED NO. 120,310—DECEMBER 23, 2020

FACTS: Stanley convicted of first-degree murder. On appeal he claimed: (1) district court erred when it refused to grant mistrial because witness Rose was rendered incompetent and unavailable when she claimed to have “double memories” of the same events; (2) error to modify the PIK instruction defining premeditation to add language approved in State v.

Bernhardt, 304 Kan. 460 (2016); (3) term “premeditation” is unconstitutionally vague in light of recent developments of law making no practical distinction between “intentional” and “premeditated” killing; and (4) cumulative error denied him a fair trial.

ISSUES: (1) Witness testimony; (2) jury instruction—premeditation, (3) constitutionality of first-degree murder statute; (4) cumulative error HELD: Stanley failed to preserve his claim that the witness with “double memories” constituted a fundamental trial failure. Stanley abandoned claim made to district court that Rose was not competent to testify. Instead, he argued for first time on appeal that State’s intentional sequencing of witnesses to put Rose’s testimony at the end denied Stanley the ability to use this testimony while cross-examining State’s other witnesses, and that this constituted a fundamental failure in the trial.

District court did not err when it included additional language in the premeditation jury instruction. No departure from analysis in Bernhardt. In this case the instruction was both legally and factually appropriate given the potential for juror confusion over the temporal intricacies embedded in the legal concept of premeditation.

Premeditated first-degree murder is not an identical offense to intentional second-degree murder, and the statute is not unconstitutionally vague. Holdings in Bernhardt and State v.

McLinn, 307 Kan. 307 (2018), are not disturbed. Premeditation, having both a temporal element and a cognitive element, is distinguished from intent. Best practice in future cases using a Bernhardt instruction is to add: Premeditation

requires more than mere impulse, aim, purpose, or objective.

It requires a period, however brief, of thoughtful, conscious reflection and pondering—done before the final act of killing—that is sufficient to allow the actor to change his or her mind and abandon his or her previous impulsive intentions.

Cumulative error doctrine not applicable where no error is found.

CONCURRENCE (Luckert, C.J.): Citing her dissent in Stafford and Bernhardt, would hold the confusing and contradictory premeditation instruction could have misled the jury.

Considering the overwhelming evidence of premeditation in this case however, confusion caused by the erroneous instruction would not have affected outcome of Stanley’s trial.

STATUTES: K.S.A. 2019 Supp. 21-5202(h), -5402(a)(1), 22-3413(3); K.S.A. 2013 Supp. 21-5209; K.S.A. 2002 Supp.

21-3402(a); K.S.A. 21-3401(a) APPEALS—APPELLATE PROCEDURE—CONSTITUTIONAL LAW—CRIMINAL LAW—CRIMINAL PROCEDURE—EVIDENCE—JUVENILES—STATUTES STATE V. VONACHEN RENO DISTRICT—AFFIRMED NO. 118,361—DECEMBER 4, 2020

FACTS: 14-year old Vonachen burned down family home.

State charged him with two counts of first-degree murder (of mother and sister), attempted first-degree murder (of father), and aggravated arson. Convicted as charged after being certified to be tried as an adult. On appeal Vonachen claimed: (1) State’s approach to insanity defense violated his rights under 8th and 14th Amendments to U.S. Constitution; (2) order compelling him to produce personal writings made in a detention center while awaiting trial violated his rights under 5th Amendment to U.S. Constitution and section 10 of Kansas Constitution Bill of Rights; (3) error to deny Vonachen’s motion to suppress incriminating statements he made to police; (4) prosecutor’s closing argument improperly shifted burden of proof to the defense; (5) cumulative error denied him a fair trial; (6) court’s certification to try him as an adult violated Apprendi; and (7) court abused its discretion in applying factors in K.S.A. 2012 Supp. 38-2347(e) to authorize adult prosecution of a juvenile.

ISSUES: (1) Constitutional challenge to insanity defense; (2) compelled production of writings; (3) motion to suppress incriminating statements; (4) prosecutorial error; (5) cumulative error; (6) adult prosecution—Apprendi; (7) adult prosecution—authorization HELD: Vonachen’s constitutional challenges to insanity defense, raised for first time on appeal, are not considered.

His 8th amendment claim is not subject to an exception because additional facts are needed to decide the claim. 14th amendment claim is defeated by Kahler v. Kansas, 589 Kan. U.S. __ (2020), and State v. Bethel, 275 Kan. 456 (2003).

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where the appellate record does not include the actual rulings on the motion or the writings in question.

Under totality of circumstances in this case, district court did not err in concluding Vonachen’s incriminating statements were voluntary and freely given. Better practice for trial court faced with determining the voluntariness of a juvenile confession is to explicitly consider factors in State v. Young, 220 Kan. 541 (1976), when making that determination.

No prosecutorial error found. Prosecutor’s statements simply summarized two instructions, and any possible ambiguity about which party bore the burden of proof was plainly explained in a following instruction.

Cumulative error claim fails because no error in this case.

Vonachen’s Apprendi claim is unpreserved and is not considered. Kansas Supreme Court has consistently rejected the same argument.

No abuse of discretion found in district court’s application of the eight factors in K.S.A. 2012 Supp. 38-2347(e) to be considered in authorizing adult prosecution of Vonachen.

STATUTES: K.S.A. 2019 Supp. 21-5209 , -6806(c); K.S.A. 2012 Supp. 38-2304, -2347(a)(1), 2347(a)(2), -2347(e); K.S.A. 22-3219(2), 38-2333(a), -2333(b), 60-404

Kansas Court of Appeals Civil LAW ENFORCEMENT STORMONT-VAIL HEALTHCARE, INC. V. BOARD OF COUNTY COMMISSIONERS FOR SHAWNEE COUNTY, KANSAS, AND CITY OF TOPEKA, KANSAS SHAWNEE DISTRICT COURT—AFFIRMED NO. 120,345—DECEMBER 11, 2020

FACTS: A suspected felon, Jesse Dimmick, was involved in a police chase covering many counties before it ended in Shawnee County. As he was being taken into custody after a hostage standoff, a law enforcement officer accidentally shot Dimmick in the back. Dimmick was transported to Stormont-Vail Hospital where he was successfully treated for his injuries. After his release from the hospital, Dimmick was charged with and later convicted of multiple felonies. Stormont-Vail filed suit against the City of Topeka and Shawnee County to recover the cost of the medical care they provided for Dimmick. The case was initially decided on summary judgment, but an appeal sent the matter back to district court for further factfinding. After the remand, Stormont-Vail filed an amended petition adding the Kansas Highway Patrol as a defendant. The complaint was dismissed as to KHP on statute of limitations grounds. The district court heard evidence and determined that the KHP was the law enforcement agency liable for the cost of Dimmick’s medical care. Stormont-Vail appealed.

ISSUE: (1) Who was obligated to pay for Dimmick’s medical care HELD: K.S.A. 22-4612 requires the law enforcement agency having custody over the individual to pay for medical care. Dimmick was in custody before he was shot, regardless of whether he had been formally arrested at that time. Because there were multiple law enforcement agencies involved 74

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in this action, the agency which had “operational control” is liable for Dimmick. The concept of “operational control” encompasses custody and is gauged by deciding who was the captain of the team. The district court correctly found that KHP had operational control of the scene when Dimmick was taken into custody and shot.

STATUTE: K.S.A. 22-4612 RES JUDICATA HERINGTON V. CITY OF WICHITA SEDGWICK DISTRICT COURT—AFFIRMED NO. 120,329—DECEMBER 4, 2020

FACTS: Officer Williamson fatally shot Troy Lanning after a lengthy pursuit. Lanning’s mother, Dawn Herington, filed suit in federal district court against Williamson and the City of Wichita seeking damages for the violation of Lanning’s civil rights under federal law and on state law tort claims. The federal district court granted summary judgment to Williamson based on qualified immunity and to the City on the merits. The federal district court dismissed the state law claims for lack of jurisdiction, without ruling on their merits. Herington refiled the state law claims in Sedgwick County. The district court applied res judicata as the Kansas Supreme Court has defined it, granting summary judgment to both Williamson and the City because the claims were raised in the federal action.

ISSUE: (1) Whether res judicata precludes Herington’s state law claims HELD: The panel must apply res judicata as the Kansas Supreme Court applied it in Stanfield v. Osborne Industries, Inc., 263 Kan. 388, 949 P.2d 602 (1997). That holding requires dismissal of Herington’s state law claims because a federal court dismissed them for lack of jurisdiction when

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entering judgment on behalf of Williamson and the City. The panel notes that this formulation of res judicata appears to be unique to Kansas and that it deprives Herington of having her state law claims heard on their merits. But because the panel is bound by Supreme Court precedent, the district court must be affirmed.

CONCURRENCE: (Atcheson, J.) The Stanfield rule is exceedingly unfair, depriving plaintiffs of their day in court for no good reason. Stanfield and its progeny were wrongly decided and should be overturned.

STATUTES: No statutes cited.

DIVORCE—JUDGMENTS—LACHES IN RE MARRIAGE OF DOUD AND MODRCIN JOHNSON DISTRICT COURT—AFFIRMED IN PART, REVERSED IN PART, REMANDED NO. 120,897—DECEMBER 23, 2020

FACTS: Doud and Modrcin were divorced in 2007. The matter was partially finalized through the decree. In addition, the parties worked through mediation to solve lingering custody issues and the matter of the division of their property.

They reached a solution and signed a settlement agreement in July 2008 which divided most of their personal property.

The district court reserved jurisdiction over unlisted property and the parties’ University of Kansas Williams Education Fund contribution process. Shortly after the district court’s order was filed, Modrcin filed a motion to alter or amend and the district court made some changes regarding the Williams Fund contributions. Nothing happened until July 2015, when Doud sought to enforce the 2008 journal entries. She alleged that Modrcin violated the court’s order by failing to pay certain expenses. Modrcin responded by arguing that the July 2008 judgment had been extinguished and could no longer be enforced or, in the alternative, that enforcement was barred by laches. After a hearing, the district court ruled that its 2008 journal entry was an enforceable final judgment. Because there had been no attempt to enforce the judgment, the district court agreed with Modrcin that the judgment had been extinguished and could not be enforced and that laches would otherwise preclude relief. Doud appealed.

ISSUES: (1) Whether the 2008 judgment was extinguished and no longer enforceable; (2) division of Williams Fund account HELD: The parties’ mediation agreement became a binding court order when it was incorporated into the divorce decree. But only a final judgment can become dormant or extinguished. Neither the July 2008 nor October 2008 judgments were final, meaning they could not become dormant.

The district court specifically retained jurisdiction over certain personal property and the Williams Fund contributions.

The district court also abused its discretion by finding that enforcement of the judgment was barred by laches. The analysis was too intertwined with the analysis on dormancy, and the district court should consider this equitable argument on remand. The district court had the authority to modify its

orders regarding the Williams Fund account and did not err by doing so.

STATUTES: K.S.A. 2019 Supp. 23-2712(b), 60-254(a), -254(b), -262(a), -2403, -2403(a)(1), -2403(c), -2404; K.S.A. 60-2202, -2404 DISABILITY RIGHTS—INJUNCTIONS ROLL V. HOWARD SEDGWICK DISTRICT COURT—AFFIRMED NO. 121,447—DECEMBER 11, 2020

FACTS: Roll has schizophrenia and an intellectual disability and has been treated at Parsons State Hospital since 1970.

Her parents are deceased, but her two sisters serve as her guardians. As part of an effort to both save money and place patients in the least-restrictive setting possible, Parsons staff identified Roll as someone who could be successfully transferred to a community placement. Roll’s guardians opposed the move, claiming there was no community-based placement that could work. The guardians’ concerns focused on the length of time Roll has spent at Parsons and her relative freedom there. Parsons persisted with the transfer and Roll’s guardians sought to enjoin it, claiming the Americans With Disability Act prevented the State from transferring Roll without the approval of her guardians. The district court held an evidentiary hearing on the matter, hearing from professionals who believed that Roll’s treatment needs could be met in a community-based setting where she was not exposed to acting-out behavior from people with conditions more serious than hers. The testimony in favor of leaving Roll where she was focused on the length of her stay there and her comfort with her surroundings and routine. The district court denied the request for injunction, finding that Roll could succeed in a community program. The guardians appealed.

ISSUES: (1) Whether substantial evidence shows Roll can be treated in the community; (2) potential for relief under the ADA or Social Security Act; HELD: The appellate court must defer to the district court’s factual findings and rulings on credibility. The record on appeal shows sufficient evidence to support the district court’s findings that Roll can function in a community setting. Neither the ADA nor the SSA allow Roll to refuse communitybased treatment and insist on receiving institutional care.

STATUTES: 42 U.S.C. § 1983, § 1396n(c)(2)(C), § 12101(a)(2), § 12101(a)(5), §12132, §12134(a) STATUTE OF LIMITATIONS—TRUST AST V. MESKER SEDGWICK DISTRICT COURT—AFFIRMED NO. 122,556—DECEMBER 23, 2020

FACTS: The Bill Mesker living trust was created in October 1992. Ast and Hoag are Mesker’s grandchildren. After the death of his first wife, Bill married Myleena, who had been employed by the Meskers for some time. Bill continued to provide substantial financial support to his children and grandchildren. He also amended his revocable living trust on www.ksbar.org | January/February 2021 75

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multiple occasions, ultimately increasing Myleena’s residuary share to 50%, removing Ast and Hoag as beneficiaries, and limiting the amount their father would receive from the trust upon Bill’s death. Bill died more than a year after the final amendment to his trust. An autopsy revealed that Bill had been suffering from Alzheimer’s and dementia, leading Ast and Hoag to wonder whether Bill had the capacity to amend his living trust in May 2016. Almost two years after Bill’s death, Ast and Hoag filed this action alleging that Myleena asserted undue influence over her husband in amending his living trust. Their claim for “common law undue influence” did not name the trustee or the trust beneficiaries as parties.

Myleena responded by filing a motion to dismiss, claiming the claim was barred by the statute of limitations, among other things. After hearing argument, the district court dismissed the lawsuit, finding that it was barred by the one-year statute of limitations. Ast and Hoag appealed.

ISSUES: (1) Application of one-year statute of limitations HELD: The statute of limitations applied by the district court is part of the Kansas Uniform Trust Code. The KUTC establishes that an action contesting the validity of a revocable trust must be brought within one year of the settlor’s death. It is undisputed that Ast and Hoag sought to invalidate a revocable trust, meaning the district court properly applied a one-year statute of limitations. This is true even though Ast and Hoag sought monetary damages in their petition. Monetary damages are not available for this cause of action and there is no other legal theory which would require a different statute of limitations.

STATUTES: K.S.A. 58a-604(a), 60-513(a)(4), -513(b)

testimony. The district court denied Skaggs’ motion after a preliminary hearing as untimely and successive, and Skaggs appealed.

ISSUES: (1) Existence of manifest injustice; (2) claim of actual innocence HELD: The one-year time limit of K.S.A. 60-1507 can be extended only to prevent manifest injustice. In this case, there are valid questions about whether Skaggs received effective assistance from counsel for his first 1507 motion. There is not enough information to determine whether counsel’s actions were error or part of a strategy, so the case must be remanded to the district court for further consideration of whether Skaggs established manifest injustice for failing to timely file these claims. When a movant asserts ineffective assistance of counsel based on counsel’s failure to discover the evidence that proves actual innocence, this evidence constitutes newly discovered evidence. Here, the photographs may support a colorable claim of actual innocence. But there must be an evidentiary hearing to determine whether Skaggs is entitled to relief.

STATUTES: K.S.A. 2019 Supp. 60-1507, -1507(c), -1507(f) (2); K.S.A. 22-3501

ATTORNEY AND CLIENT—HABEAS CORPUS SKAGGS V. STATE LEAVENWORTH DISTRICT COURT—REVERSED AND REMANDED NO. 121,065— DECEMBER 4, 2020

FACTS: Jury convicted Genson of failing to register under Kansas Offender Registration Act (KORA). Citing his involuntary commitment less than three days after registration violation, Genson notified district court of intent to present a defense of mental disease or defect. District court ruled Genson could not present that defense to a strict liability crime, granted State’s motion to exclude evidence of mental illness, and denied Genson’s proposed jury instruction that included a mens rea for failing to register. On appeal, Genson claimed: (1) K.S.A. 2019 Supp. 21-5209 unconstitutionally abolished insanity defense by forgoing the mental capacity prong of the M’Naghten test; (2) error to deny Genson’s request for jury instruction that included mens rea; (3) even if KORA violation is a strict liability crime, K.S.A. 2019 Supp. 21-5203(e) violates state and federal substantive due process rights and sections 1 and 5 of Kansas Constitution Bill of Rights; and (4) error for district court to not instruct jury sua sponte about power to nullify.

ISSUES: (1) Constitutionality of K.S.A. 2019 Supp. 215209; (2) jury instruction; (3) constitutionality of K.S.A. 2019 Supp. 21-5203(e); (4). jury instruction—nullification HELD: Genson’s constitutional challenge to K.S.A. 2019 Supp. 21-5209, raised for first time on appeal, is not consid-

FACTS: Skaggs was convicted of multiple sex crimes against a child in 2007, and his convictions and sentence were affirmed on direct appeal. Skaggs filed a timely K.S.A. 601507 motion in which he alleged ineffective assistance of trial counsel. The claim most relevant to this appeal was whether trial counsel was ineffective for failing to challenge the State’s medical expert, Dr. Sinclair, who gave inconsistent testimony regarding the victim’s physical exam. The district court denied the motion after an evidentiary hearing, finding that trial counsel’s decision not to directly challenge Dr. Sinclair was a reasonable trial strategy. The decision was affirmed on appeal. Skaggs continued to investigate and learned of photographic evidence that could have cast doubt on Dr. Sinclair’s testimony. Skaggs claimed that the photographs were never provided to defense counsel prior to trial. Skaggs filed a second K.S.A. 60-1507 motion in 2017 in which he claimed that the missing photographs could establish a colorable claim of actual innocence, that the State erred by failing to provide these photos before trial, and that trial counsel was ineffective for failing to hire a medical expert to contradict Dr. Sinclair’s 76

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Criminal APPEALS—CONSTITUTIONAL LAW—CRIMINAL LAW— EVIDENCE—JURY INSTRUCTIONS—STATUTES STATE V. GENSON RILEY DISTRICT COURT—AFFIRMED NO. 121,014—DECEMBER 18, 2020

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ered due to Genson’s noncompliance with Supreme Court Rule 6.02(a)(5).

District court properly denied the requested jury instruction for a mens rea element because K.S.A. 2019 Supp. 215203(e) unambiguously defines a KORA violation as a strict liability crime.

Constitutional claims raised under sections 1 and 5 of Kansas Constitution Bill of Rights, raised for first time on appeal, are not considered. K.S.A. 2019 Supp. 21-5203(e), making a KORA violation a strict liability offense, does not violate substantive due process. Legislature has the power to enact strict liability crimes and U.S. Supreme Court has upheld strict liability crimes in limited circumstances. Kansas statute is interpreted on relevant factors of public welfare, penalty, and reputation. Genson’s offense falls within class of strict liability cases that may be upheld based on public welfare rationale because KORA meets rational basis test as it is in governmental interest to protect public from sexual and other violent offenders. Penalty factor does not point to substantive due process violation because failure to register is viewed as a mere technicality and any stigma pales in comparison to preexisting stigma of the offense giving rise to duty to register.

And fact that KORA violation is a felony with presumptive prison time carries little weight where district court properly took Genson’s mental illness into account during sentencing and Genson got a downward departure and probation instead of prison.

Jury nullification claim is defeated by State v. Boothby, 31Kan. 619 (2019), and State v. Toothman, 310 Kan. 542 (2019).

DISSENT (Atcheson, J.): Majority opinion is criticized in detail. The crime created and penalties imposed on violent offenders and drug offenders in K.S.A. 2019 Supp. 22-4903 for failing to register and report under KORA impermissibly deprive those groups of a fundamental liberty interest protected by the Due Process Clause. Unlike sex offenders, violent offenders and drug offenders were added to the statutory scheme without any demonstrably comparable public welfare purpose. Criminalization of the failure to register and report as set out in K.S.A. 2019 Supp. 22-4903 violates the fundamental due process rights of the class of violent offenders defined in KORA, including Genson. Would reverse Genson’s conviction and vacated his sentence.

STATUTES: K.S.A. 2019 SUPP. 21-5201, -5201(A), -5202(A), -5202(D), -5202(E), -5202(J), -5203, -5203(E), -5209, -6804(M), 22-4902, -4902(B), -4902(E), -4902(E) (1)(D), -4902(E)(4), -4902(F), -4903, -4903(A), -4903(C) (1)(A), -4905(A); K.S.A. 21-3204, -5203, 22-3219, -4901 ET SEQ., -5209, 59-29A01 ET SEQ., 65-2803, -2803(D)

APPEALS—APPELLATE PROCEDURE—CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—EVIDENCE— JURY INSTRUCTIONS STATE V. GUTIERREZ-FUENTES SEDGWICK DISTRICT COURT—AFFIRMED NO. 120,339—NOVEMBER 25, 2020

FACTS: Arising from violent assault on ex-girlfriend, an October 2016 information charged Gutierrez-Fuentes with rape, aggravated battery, aggravated burglary, and criminal threat. An amended information filed the month after his February 2017 arrest added second count of aggravated battery. Trial began August 2018. During trial, district court allowed officers to testify as to what victim said through interpreters. Jury convicted on all charges but for rape. On appeal Gutierrez-Fuentes claimed: (1) violation of his right to a speedy trial; (2) insufficient evidence supported the aggravated burglary conviction because State failed to prove he was legally unauthorized to be in victim’s apartment; (3) error to admit inadmissible hearsay evidence where interpreters were not available for cross-examination; and (4) over-broad instruction on elements of aggravated battery charged in count two allowed jury to convict based on uncharged conduct.

ISSUES: (1) Right to a speedy trial; (2) sufficiency of the evidence—aggravated burglary; (3) hearsay evidence—interpreters; (4) jury instruction HELD: No violation of Gutierrez-Fuentes’ Sixth Amendment right to a speedy trial. This constitutional issue raised for first time on appeal is considered to prevent denial of a fundamental right, but statutory speedy trial claim is deemed abandoned. Based on complexity of this case, the 18-month delay between arrest and trial was not presumptively prejudicial. Also, Gutierrez-Fuentes abandoned any argument regarding actual prejudice from the delay even if presumptive prejudice had been found.

Sufficient evidence supports the aggravated burglary verdict. Under facts including Gutierrez-Fuentes forcibly breaking door open to gain entry, a rational fact-finder could conclude beyond a reasonable doubt that he entered victim’s apartment without authority. State v. Vasquez, 287 Kan. 40 (2008), is factually distinguished. State v. Williams, 308 Kan. 1439 (2018), is more analogous.

Kansas Supreme Court has not directly addressed issue of whether or not a neutral third-party’s interpreter’s statements are inadmissible hearsay. Based on guidance in State v. Van Phan, 234 Kan. 649 (1984), language conduit rule favorably applied by majority of state and federal courts is adopted.

When record contains no evidence of a motive to mislead by an interpreter or other evidence questioning an interpreter’s neutrality and the declarant testifies at trial, evidence of a neutral third-party’s interpreted statements is attributed to the declarant without an additional lawyer of hearsay under the language conduit rule. Also, such hearsay evidence error would have been harmless in this case.

Under State v. Fleming, 308 Kan. 689 (2018), invited error doctrine applies and bars Gutierrez-Fuentes’ challenge to the jury instruction. www.ksbar.org | January/February 2021 77

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STATUTES: K.S.A. 2019 Supp. 22-3402, 60-460, -460(a); K.S.A. 2016 Supp. 21-5807(b)(1) APPELLATE PROCEDURE—CONSTITUTIONAL LAW— CRIMINAL LAW—CRIMINAL PROCEDURE—JURY INSTRUCTIONS—MOTIONS—SPEEDY TRIAL—STATUTES STATE V. STEVENSON ELLIS DISTRICT COURT—AFFIRMED IN PART, REVERSED IN PART, REMANDED NO. 119,677—NOVEMBER 20, 2020

FACTS: Stephenson was arrested in Ellis County and released on bond in 2015. He then disappeared and was arrested in August 2017 on outstanding Ellis and Barton County warrants. After serving three months in Barton County, he was served with an Ellis County warrant. Trial date set when he appeared in Ellis County District Court in November 2017 on amended complaint charging a single county of criminal threat. 86 days later, he filed a motion to dismiss for statutory speedy trial violations because he was not brought to trial on the Ellis County charge within 90 days of his appearance in Barton County. District court denied the motion. Jury convicted Stevenson of criminal threat. On appeal he claimed: (1) violation of speedy trial statute; (2) his conviction was unconstitutional and unsupported by the evidence; and (3) district court erred in failing to sua sponte instruct jury on lesser included instruction of disorderly conduct. After briefs were filed, State v. Boettger, 310 Kan. 800 (2019), cert. denied 140 S.Ct. 1956 (2020), held the “reckless disregard” portion of the 2018 criminal threat statute was unconstitutional. Parties were directed to show cause why Stevenson’s appeal should not be dismissed in light of Boettger.

ISSUES: (1) Speedy trial; (2) criminal threat conviction— constitutionality and double jeopardy; (3) jury instruction— lesser included offense HELD: Stevenson’s speedy trial claim fails. Under a plain reading of K.S.A. 2019 Supp. 22-3402(d), when a defendant appears in court “on such warrant,” it is referring to the bench warrant issued due to the defendant’s failure to appear at the trial or pretrial hearing in that court while on bond.

2015 version of reckless criminal threat, which is the same in relevant part as the 2018 version, is unconstitutional. Striking factual similarities notes in this case with State v. Johnson, 310 Kan. 835 (2019), cert. denied 140 S.Ct. 1956 (2020), and State v. Lindemuth, 312 Kan. 12 (2020). As in those cases, the trial record provides no basis to discern whether jury found State had proved beyond a reasonable doubt that Stevenson committed criminal threat intentionally. State’s argument for harmless error fails. Stevenson’s conviction is reversed. Because sufficient evidence supports a conviction for intentional criminal threat, a retrial would not violate Stevenson’s double jeopardy rights.

A disorderly conduct jury instruction was not legally appropriate. As held in State v. Butler, 25 Kan. App. 2d 35 (1998). disorderly conduct is not a lesser included offense of criminal threat.

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STATUTES: K.S.A. 2019 Supp. 21-5415(a)(1), -6203, 223402(b), -3402(d), -4301; K.S.A. 2018 Supp. 21-5415(a)(1); K.S.A. 2015 Supp. 21-5202(h), -5415(a)(1); K.S.A. 21-3419, -4101, -5415(a)(1), 22-3414(3), -4301 et seq.

JURISDICTION—JUVENILE ADJUDICATION IN THE MATTER OF T.T. LEAVENWORTH DISTRICT COURT—APPEAL DISMISSED NO. 122,658—DECEMBER 23, 2020

FACTS: T.T. was adjudicated a juvenile offender and given a presumptive sentence of incarceration in a juvenile correctional facility as a violent offender II until the age of 22.5, followed by after care until age 23. After T.T.’s adjudication was affirmed on appeal, he filed a motion to modify sentence.

The district court denied the motion, finding that T.T. was appropriately sentenced given the nature of the crime and the needs of the community. T.T. appealed.

ISSUES: (1) Jurisdiction to modify sentence HELD: Under the Revised Kansas Juvenile Justice Code, the denial of a motion to modify sentence is not an appealable order. K.S.A. 38-2380 is unambiguous and does not provide authority for this type of appeal. The scope of a district court’s jurisdiction is different for a juvenile adjudication and cannot be treated like an adult criminal appeal. And even if there were statutory authority for this type of appeal, T.T.’s sentence was well within the presumptive range for his convictions. The appellate court may not review any sentence that is within the presumptive range. T.T. is not entitled to appellate relief.

STATUTES: K.S.A. 2019 Supp. 22-3609(a), 38-2369(a)(1) (B), -2380(b), -2380(b)(2)(A); K.S.A. 2014 Supp. 22-3601(a), 38-2380

Appellate Practice Reminders From the Appellate Court Clerk’s Office

CLERK’S COVID CRAZY CONTEMPLATIONS FOR 2021 What a time in history to reflect about the past year. I dug up several inspirational quotes on the internet in search of hope for 2021 and I swear my computer was talking directly to me:

1.

Don’t waste your time by dwelling in the past and thinking of it. Learn to live in the future ahead of you.

2.

Yesterday is gone. There is nothing that you can do to make your past better. Forget it and make sure to make your future worth it.

3.

Never let your past be an excuse for not concentrating towards your future.

4.

No matter whether it’s good or bad, the past is meant to be forgotten.

5.

Expect something good to happen today no matter what has happened to you in your past.

I love number five! That’s great inspiration. Yet, I seem to have a lingering realization: “Forgetting the past is easier to say than to be done.”

Duh, forgetting all the pandemically bad events of 2020 is not easy. Practicing law is not easy. Practicing law in a pandemic is crazy. Take a second to appreciate all the changes you made in 2020 to your law practice. Equally appreciate the stress that accompanies those changes. If you are struggling, don’t bottle up all that stress. Others you know might be struggling too. Recognize when you or a colleague are struggling and need help. Use the Kansas Lawyers Assistance Program (www.kalap.com – 785-368-8275). It’s free. It’s confidential. It can save your life and your practice.

There is so much to anticipate in 2021. In the appellate clerk’s office, we look forward to 2021 with great anticipation. The unifying state-wide case management system should be coming to the appellate world this year.

Our implementation would have been sooner, but there was this pandemic thing that got in the way. We have been putting band aids on an archaic system for which even Fred Flintstone would have sought­­­an upgrade.

Champagne glasses raised to 2021. Let’s leave most of 2020 in the rearview mirror. Happy New Year!

For questions about these or other appellate procedures and practices, the appellate clerk’s office is only a phone call (785) 296-3229) or an email (appellateclerk@kscourts.org) away.

Douglas T. Shima, Clerk of the Appellate Courts.

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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.

Growing investment company has an opening for an in-house counsel with extensive business and litigation experience; send resume to: hiringmanagerOKC1@gmail.com INTRUST Bank N.A. seeks qualified attorneys for two open roles: Senior Associate Counsel—Lending, and Associate Counsel.

Both roles require at least 5 – 10 years of relevant experience and admission to the Kansas Bar. Senior Associate Counsel—Lending provides legal advice on diverse topics to the lending areas of the bank, including review and documentation of commercial loan transactions. Associate Counsel role supports bank operations including deposit and payment

products and services, consumer and business banking, treasury management, remote banking, deposit operations and payment system operations. Visit intrustbank.com/careers.

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.

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 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 mo-

tions, 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.

David P. Mudrick, Mediator and Arbitrator: AV-rated, over 30 years’ experience in

employment and labor cases and in civil litigation; Past President, KBA Employment Law section (2016-18); selected numerous times for Best Lawyers in America © (Litigation—Labor and Employment and other Employment/Labor categories) and Missouri-Kansas Super Lawyers ©; past selection in Ingram’s Magazine Best Lawyers in Kansas City ©; approved by State of Kansas as Civil Mediator and as Faculty Due Process Hearing Examiner; former corporate counsel in charge of litigation & claims, including personal injury, contract, and discrimination claims. Mudrick Arbitration & Mediation, LLC (785) 5541570, dmudrick@MudrickADR.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. www.ksbar.org | January/February 2021 81

classified advertisements

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

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 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.

OVERLAND PARK – Offices for Rent.

Law offices in Old Downtown Overland Park in remodeled historic building. Includes: free parking, reception area, kitchen, conference room, fax, scanner, copier, telephones, voicemail and high-speed internet access. The offices are walking distance of coffee shops, restaurants and retail stores. Fourteen highly respected attorneys in an office-sharing/networking arrangement. For more information, please contact James Shetlar at 913.648.3220

82

The Journal of the Kansas Bar Association

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.

Interested in placing a

Classified Ad in the KBA Journal?

COST: FREE for KBA Members

$45/three months for Non-members

Word count: 75-100 words

(Editor reserves the right to edit for space.)

Simply email your preferred copy to: Editor@ ksbar.org

REBEIN BROTHERS TRIAL LAWYERS

- Truck Accident Attorneys -

We handle significant truck injury cases -ACROSS THE MIDWESTWe are your truck accident experts.

We PAY A 25% REFERRAL FEE*
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DAVID@RBR3.COM | RBR3.COM | 620.339.4105

www.ksbar.org | January/February 2021 83

We represent individuals and families in trucking, bad faith, auto, product liability and medical negligence cases.

OUR 2019–2020 VERDICTS & SETTLEMENTS INCLUDE $12,750,000

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10 cases between $1,000,000–$2,000,000 Richard Budden

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OUR EXPERIENCE PAYS If you have a client with a serious injury or death

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claim, we will welcome a referral or opportunity

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to form a co-counsel relationship.

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

Past results are not an indicator of future results.