The KBA Advocate is the weekly KBA legislative newsletter that contains up-to-date information on legislation that impacts your practice. It is only published when the legislature is in session and is sent to all KBA members electronically via the KBA Weekly.
This email was prepared by the Kansas Office of the Disciplinary Administrator, reprinted by the Kansas Bar Association.
YES or NO
In accordance with Kansas Supreme Court Orders concerning court operations during the COVID-19 pandemic, the district court where attorney Marcus practices is scheduling cases for virtual hearings using Zoom, an electronic audio-visual communication program. Marcus does mostly transactional work and has very few litigation cases. As a result, Marcus has not yet participated in a virtual hearing.
In a case Marcus recently became involved in, the district court notified counsel that a pretrial evidentiary hearing will be held remotely through Zoom. Marcus is concerned because he has limited computer skills and has never used Zoom or any other kind of online video conferencing program. Marcus filed an objection to the online hearing and requested that it be held in-person. In the objection, Marcus argued that he cannot competently represent his client through a remote hearing because he is not proficient enough with computers to use Zoom. He also asserted that he should not have to try to learn how to use remote conferencing because he does so few litigation cases.
Does Marcus have an obligation under the Kansas Rules of Professional Conduct to learn how to use remote conferencing programs?
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KRPC 1.1 requires lawyers to provide competent representation to a client. “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” KRPC 1.1. As the comments to this Rule explain, the duty of competence requires lawyers to stay current with changes in the requirements involved in practicing law, including the use of technology:
“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology[.]”
KRPC 1.1, cmt. .
Because of the pandemic, the requirements involved in competently practicing law have changed and lawyers now must be able to use the remote conferencing programs courts are using to conduct online proceedings. This is true not just for court proceedings, but for other aspects of the practice of law, including depositions and interviewing witnesses. Failing to adapt to this change can render a lawyer unable to provide competent representation as required by KRPC 1.1.
There are many resources available to help lawyers learn about these programs and how to use them. The following information was provided by Danielle Hall, Executive Director of the Kansas Lawyers Assistance Program. KALAP provides not only confidential support and resources for lawyers experiencing mental health and substance abuse issues but is also an excellent source for assistance with law practice management. A full description of KALAP’s law practice management program and how to contact KALAP for law practice management consultation is on KALAP’s website at: https://kalap.com/law-practice-management/. Thank you, Danielle, for providing these resources to share with Kansas lawyers in this Refresher!
The applicants are:
Victor J. Braden, lawyer, Lawrence;
Christi L. Bright, lawyer, Overland Park;
Meryl B. Carver-Allmond, lawyer, Lawrence;
Kim W. Cudney, judge, Greenleaf;
Dennis D. Depew, lawyer, Neodesha;
Randall L. Hodgkinson, lawyer, Topeka;
Russell J. Keller, lawyer, Fairway;
Cheryl A. Rios, judge, Topeka;
Melissa Taylor Standridge, judge, Leawood;
Kristen D. Wheeler, lawyer, Wichita; and
Marcia A. Wood, lawyer, Wichita.
The Supreme Court Nominating Commission will meet by videoconference at 8:30 a.m. Friday, September 4, to finalize the date to interview applicants and discuss other procedural matters. The meeting will be broadcast live on the Kansas judicial branch YouTube channel. The commission is subject to the Kansas Open Meetings Act and the Kansas Open Records Act.
The interview schedule and brief biographical information about each applicant will be announced and posted on the Kansas judicial branch website. Applicant interviews will be broadcast live on the judicial branch YouTube channel.
A nominee for justice must be:
•at least 30 years old; and
•a lawyer admitted to practice in Kansas and engaged in the practice of law for at least 10 years, whether as a lawyer, judge, or full-time teacher at an accredited law school.
When the Supreme Court Nominating Commission reviews nominees for justice, they consider the person’s:
•legal and judicial experience
•character and ethics
•service to the community
•respect of colleagues.
Justices must follow the law and not be influenced by politics, special interest groups, public opinion or their own personal beliefs.
Justices demonstrate their accountability by following a Code of Judicial Conduct that establishes standards of ethical behavior. They also take an oath of office that includes swearing to support, protect and defend the U.S. Constitution and Kansas Constitution.
After a new justice serves one year on the court, he or she must stand for a retention vote in the next general election to remain in the position. If retained, the justice serves a six-year term.
Merit-based selection process
Supreme Court vacancies are filled through a merit-based nomination process that Kansans voted to add to the Kansas Constitution in 1958. The process involves the Supreme Court Nominating Commission, which reviews nominees, and the governor, who makes the appointments.
When there is a vacancy on the court, the Supreme Court Nominating Commission reviews applications and conducts public interviews of nominees. The commission narrows the nominee pool to three names that it sends to the governor. The governor chooses one nominee to appoint.
The Supreme Court Nominating Commission has nine members. There is one lawyer and one nonlawyer from each of the state’s four congressional districts, plus one lawyer who serves as chairperson.
Nonlawyers are appointed by the governor. Lawyers are elected by other lawyers within their congressional districts. The chairperson is elected by lawyers statewide.
Chief Justice Luckert has announced that the suspension of time limitations and deadlines will continue. The Court was granted this authority through pandemic legislation SB 102. The Court will continue the use of two-way audio-visual communications as authorized through HB 2016. Kansas courts are generally requiring mask to be worn in the courthouse and jury trials may resume under certain parameters as set out in 2020-PR-093.
The Kansas Supreme Court Nominating Commission is scheduled to interview applicants and send three names to Gov. Kelly for her selection to the court. This merit-based process allows the nominating commission to select the three most qualified applicants with the Governor making the final appointment.
One week ago, Kansas citizens wound their way to the polls to cast their votes in the 2020 primary election. The Kansas race that drew the most attention was for U.S. Senate in which Republican U.S. Rep. Roger Marshall distanced himself from 10 other primary hopefuls. His main competition (Kris Kobach, Bob Hamilton & David Linstrom) had decent showings, but none were able to crack the 30 percent mark. Marshall heads to the general election against the Democratic nominee State Senator Barbara Bollier who coasted to the democratic nomination with 86 percent of the vote. At this moment Bollier has a fundraising advantage over Marshall but Marshall has time to catch up. It has been over 80 years since Kansas sent a Democrat to the U.S. Senate.
The other big election was the three-man race for the 2nd Congressional District. Here, State Treasurer Jake LaTurner outpaced incumbent Steve Watkins and Dennis Taylor. LaTurner, a Republican, will face off against Democratic candidate, Topeka Mayor Michelle De La Isla.
The local primary races saw conservative Republicans win six of seven contested races against incumbents.
Senator Primary Winner
Ed Berger R-Hutchinson Mark Steffen, R-Hutchinson
Bruce Givens R-El Dorado Michael Fagg, R-El Dorado
Dan Goddard R-Parsons Virgil Peck, R-Havana
Randall Hardy R-Salina Rep. J.R. Claeys, R-Salina
John Skubal R-Overland Park Rep. Kellie Warren, R-Leawood
Mary Jo Taylor R-Stafford Rep. Alicia Straub, R-Ellinwood
Rep. Brenda Dietrich was able to defeat incumbent Sen. Erik Rucker in Senate District 20.
The House saw a similar pattern with conservative Republicans outpacing their more moderate counterparts.
Representative Primary Winner
Diana Dierks R-Salina Steven Howe, R-Salina
Jim Karleskint R-Tonganoxie Lance Neelly, R-Tonganoxie
Jan Kessinger R-Overland Park Jane Dirks, R-Overland Park
J.C. Moore R-Clearwater Brian Bergkamp, R-Haysville
Incumbent democrats may only lose one race where Rep. Stan Frownfelter is losing to Aaron Coleman by a single vote; a recount appears inevitable.
Democrats are optimistic about their general election chances in the Senate but even a strong showing leaves conservative in charge. It will create difficulties for Medicaid Expansion, budget issues and COVID response. Gov. Kelly will most likely have to deal with an even more conservative legislative branch for the next 24 months.
Kansas elections are conducted by the counties with oversight by the secretary of state’s office. Voter registration application (Español) forms must be submitted to the county election officer where the applicant lives. Kansans may also register to vote or change their registration information online with a valid Kansas driver’s license or nondriver identification card. The deadline to register to vote is the twenty-first day before any election.
Each county chooses its voting system from a list of equipment certified by the secretary of state. A list of what voting system each county uses is kept by the secretary of state. All certified systems must meet the requirements of the national voting system standards. Maps of national and state districts also are available to ensure Kansans have all the information they need about voting matters.
This brochure describes requirements for accessibility for people with disabilities. It was created by the Disability Rights Center and funded by the Kansas Secretary of State.
Kansas allows voters to cast their ballots through advance voting. Any registered voter can vote by mail or in-person prior to Election Day. To vote by mail, voters should contact their county election officer and request an advance ballot application. Advance ballots are mailed to voters starting 20 days before the election and must be post-marked on or before Election Day and received no later than three days after the election. Voters can also hand-deliver their advance ballot to the county election office or any polling location within their county by the close of polls on Election Day. Kansas voters may also vote in person at the county election office starting the Tuesday before Election Day, or up to 20 days before the election, depending on the county. Voters who are ill, disabled or not proficient in English may receive assistance in applying for and casting advance ballots.
Important 2020 Election Advance Voting Dates
• Tuesday, July 14 (TODAY!)– Last day to register to vote for the Primary Election.
• Wednesday, July 15 – First day advance ballots are mailed and in-person advance voting may begin. Contact your county election office to find out when and where.
• Tuesday, July 28 – Deadline for voters to apply for advance ballots to be mailed for the Primary Election.
• Tuesday, August 4 (PRIMARY ELECTION) – Advance ballots must be postmarked on or before Election Day and received in the county election office no later than three days after the election. Advance ballots may be hand-delivered to the county election office or to any polling place within the county by close of polls.
• Tuesday, October 13 – Last day to register to vote for the General Election.
• Wednesday, October 14 – First day advance ballots are mailed and in-person advance voting may begin. Contact your county election office to find out when and where.
• Tuesday, October 27 – Deadline for voters to apply for advance ballots to be mailed for the General Election.
• Tuesday, November 3 (GENERAL ELECTION) – Advance ballots must be postmarked on or before Election Day and received in the county election office no later than three days after the election. Advance ballots may be hand-delivered to the county election office or to any polling place within the county by close of polls.
If you have questions, call toll-free at 1-800-262-VOTE (8683).
Governor Laura Kelly announced on Monday her allotment plan for FY 21—budget reductions made necessary by the COVID-19 pandemic. The $704 Million allotment plan hits loan repayments to the Pooled Money Investment Board, Human Services Caseload savings, and hits the Coronavirus Response Fund hardest with nearly $430 million in reductions.
Governor Kelly also placed a moratorium on KPERS Death and Disability fees. Those fees are used for long term disability and group life insurance. The moratorium hits all three branches of government to the tune of $46 million for the executive branch, $525K for the judicial branch and $224K for the legislative branch. The D&D moratorium for the executive branch can take effect immediately, but the moratorium for the judicial and legislative branches require legislative approval; the earliest those reductions can be implemented is 2021. In addition, the proposed reductions would have no impact on the day-to-day operations of the court system.
FY 2021 Governor's State General Fund Allotment Plan July 2020
Delay PMIB Loan Payment--FY 2021 (132,166,666)
Additional PMIB Loan--FY 2021 (132,166,667)
State Water Plan--Dept. of Agriculture (1,247,699)
State Water Plan--Kansas Water Office (1,160,000)
EDIF--Crossroads Conversations Project (20,000)
Governor's Allotment Expenditure Reductions FY 2021 Human Service Caseload Savings (146,686,946)
Delayed FY 2022 State Foundation Aid Payment--KSDE (79,345,549)
Replace Higher Education SGF with GEER (26,274,163)
IDD Waiver--FY 2021 Increase (8,958,340)
SB 155 Career & Technical Education--Board of Regents (8,500,000)
Winfield & Lansing Expansion--Department of Corrections (6,089,218)
School Safety Grants--Department of Education (5,000,000)
University of Kansas Medical Center--Cancer Center Research Grant (5,000,000)
All Other Agency-Specific Allotments (40,033,935)
KPERS Death & Disability (D&D) Moratorium--Exec. Branch (46,687,965)
Coronavirus Relief SGF Savings (1,932,543)
Kansans rely on the Kansas court system for fairness and justice under the rule of law. Because judges are the gatekeepers of the court system, it is imperative that judges exhibit certain qualifications, including:
• Integrity: A judge should be honest and committed to the rule of law.
• Professional Competence: A judge should have extensive legal knowledge.
• Judicial Temperament: A judge should be neutral, respectful and composed.
• Experience: A judge should have a strong record of excellence in the law.
• Commitment to Service: A judge should be committed to all aspects of the administration of justice.
In Kansas, openings on the Supreme Court are filled using the merit selection process. Under this process, established in the Kansas Constitution in 1958, when a vacancy is open on the Kansas Supreme Court, the nonpartisan Kansas Supreme Court Nominating Commission reviews applications, conducts public interviews and submits a list of three qualified candidates to the governor. The governor chooses one of the three to appoint to the open judicial seat. The governor has 60 days to select a candidate from those three nominees.
To be considered as a candidate for judicial office, an applicant must be a licensed attorney in Kansas over the age of 30, and must have been active as a lawyer, judge or teacher of law at an accredited law school for at least ten years.
The Supreme Court Nominating Commission has nine members—one lawyer and one non-lawyer from each of the state’s four congressional districts, plus an additional lawyer who serves as the commission’s chair. Lawyer members are elected by their peers (active Kansas attorneys), and non-lawyer members are appointed by the governor. To clarify, the Kansas Bar Association is not involved in the Supreme Court Nominating Commission. The KBA does not appoint any lawyer members to this commission. The members of the commission come from diverse backgrounds.
The 14 judges of the Kansas Court of Appeals are, like the Supreme Court justices, appointed by the governor. However, instead of choosing from a slate of candidates recommended by a nominating commission, the governor is free to nominate anyone—as long as the nominee is a licensed attorney in Kansas between the ages of 30 and 70, and has been active as a lawyer, judge or law professor for at least ten years at an accredited law school. The governor’s nominee is then subject to confirmation by the Kansas Senate (K.S.A. 20-3020 et. seq.).
This will be the third supreme court justice to retire under the Kelly Administration. Gov. Kelly has replaced Chief Justice Lawton Nuss and Justice Lee Johnson. Kelly appointed Justice Evelyn Wilson and Justice K.J. Wall, respectively. This appointment will be decided by the Kansas Supreme Court Nominating Commission.
The Commission was established in 1958 when Kansas voters supported an amendment to the state's constitution. Whenever a vacancy occurs on the Court, the commission is tasked with presenting the governor with a slate of three qualified candidates. The governor interviews the candidates and makes the appointment. This process, known as merit selection, is used by Kansas and 21 other states, along with the District of Columbia, for selecting all members of their highest court.
In the coming month, Gov. Kelly will also nominate two lawyers for the Kansas Court of Appeals. Those positions became available when Judge Steve Leben and Judge Joseph Pierron announced their retirements earlier in the spring. In early June, the Kansas Senate rejected the Governor’s first nominee, Carl Folsom; that action will restart the clock for the appointment. The second appointment was stalled due to COVID-19 concerns, but we can expect those appointments to take place this fall as well.
Late last week the Kansas Legislature adjourned for 2020 after a two-day Special Session. The Special Session became necessary when Gov. Laura Kelly vetoed COVID-19-related legislation on May 26th. The 2020 Legislative Regular, Veto and Special Sessions saw a significant decrease in legislation passed. It could be argued that 2020 was the least productive session in Kansas history, with fewer than 20 bills approved. On the flip side, we witnessed an increase in the number of issues vetoed by the governor or rejected by the legislature. For instance, Gov. Kelly vetoed HB 2054 which was the Omnibus COVID-19 response bill which forced the Special Session.
The Governor also vetoed:
• HB 2510 that contained education legislation
• HB 2619 which created a loan program for economic recovery, and
• HB 2702 dealing with property valuation
The legislature rejected two of Gov. Kelly’s executive reorganization measures. One reorganization effort would have combined DCF with KDADS; the other would have created the Energy Office. Finally, the Kansas Senate rejected the Court of Appeals nomination of Carl Folsom. The Governor will need to nominate a new candidate to fill the Court of Appeals vacancy.
The legislature was able to reach a compromise with the Governor’s Office on a new COVID-19 measure. That bill—HB 2016—was negotiated by the Governor’s office and legislative leaders. The rank and file members were not privy to these discussions. HB 2016 contains legislative oversight for federal COVID funds, new limitations on the Governor’s powers to close schools and businesses, immunity for healthcare groups and some businesses, product liability protection and extension of certain executive orders.
The bill extends the emergency declaration until Sept. 15th. The governor can extend that date for 15 days with the approval of the State Finance Council. The governor can close schools, but local school boards will have the authority to override her decision. Closing businesses will be left to county commissioners and local health officials.
The bill also creates Contact Tracing Privacy Act to protect the privacy of individuals whose information is collected through contract tracing measures. Contact tracing will not be mandatory, and those refusing to engage in contact tracing will be immune from liability.
Finally, the bill creates a provision that protects notarial acts (notarized signatures) performed via electronic means during the emergency declaration. This creates a safe harbor for remote notaries.
With the adjournment of the 2020 legislative session legislators will return to their districts to begin the campaign season. All 125 house seats are up as are all 40 State Senate seats. We will also have four congressional races and a very significant U.S. Senate race.