On Monday, Feb. 10, two (2) legislative proposals were introduced that would alter how Kansas lawyers advertise and contract with clients. These proposals deal specifically with contingency fee contracts and legal advertising.
The legal advertising proposal would require any solicitation, thru television, radio, internet, newspaper, outdoor display or any other written communication, to abide by specific restrictions. To review the language of this proposal please visit: https://www.ksbar.org/resource/dynamic/blogs/20200211_111934_16259.pdf
The contingency fee proposal would limit the fee an attorney could earn in personal injury, wrongful death or damage to property cases. The proposal mandates that the contingency fee contract could not exceed ( 1) 33.3% of the first $300,000; (2) 25% of the next $300,000; (3) 20% of the next $300,000; (4) 15% of the next $300,000; and (5) 10% of any amount that exceeds $1,200,000.
A claimant may waive these fee schedule but only after being advised by the attorney that the claimant may seek other counsel who would be willing to adhere to the statutorily imposed fee schedule. A fee schedule waive must be in writing and contain the following information:
"I UNDERSTAND THAT THE FEE SCHEDULE SET FORTH IN THE KANSAS STATUTES ANNOTATED LIMITS THE AMOUNT OF ATTORNEY FEES PAYABLE BY A CLAIMANT AND THAT THE STATUTE WAS INTENDED TO INCREASE THE PORTION OF THE JUDGMENT OR SETTLEMENT THAT WAS ACTUALLY RECEIVED BY A CLAIMANT. NOTWITHSTANDING THAT THE LEGISLATIVE INTENT IN ENACTING THE FEE SCHEDULE WAS TO CONFER A BENEFIT ON A CLAIMANT LIKE MYSELF, I KNOWINGLY AND VOLUNTARILY WAIVE THE FEE SCHEDULE IN THIS CLAIM OR CIVIL ACTION."
If the claimant agrees to the waiver, the contingency fee contract shall not exceed 33.3%.
To review this proposed language please visit: https://www.ksbar.org/resource/dynamic/blogs/20200211_111934_24155.pdf
Should you wish to comment on either of these two proposals, please send emails to firstname.lastname@example.org by 5:00 p.m. on Friday, February 14.
One Month Update
The Kansas Legislature has been working for a month—and it has been quite a month! The big news to start the session was the Medicaid Expansion agreement between the governor’s Office and Sen. Jim Denning. Things shifted quickly to the Constitutional Amendment on Abortion, only to end with both issues being intertwined. See; https://www.kansas.com/news/politics-government/article240103883.html, See also; https://www.kmuw.org/post/four-kansas-republicans-stopped-their-partys-anti-abortion-bill-gop-says-its-not-over
The abortion amendment failed last Friday, 80-43, after a five-hour Call of the House. This failure prompted Kansans for Life to publicly oppose the Medicaid Expansion proposal. Senate President Susan Wagle (R-Wichita) moved quickly after the amendment was voted down to refer all healthcare bills from the Senate calendar. This procedural rule makes it very difficult to debate and pass any healthcare bill including the proposal on Medicaid expansion.
Wagle’s strategy places the entire session in jeopardy with no one quite sure how to break the impasse. The Senate Calendar for this week has very little activity on the floor. Committees are still busy, but whether their work gets debated by the entire Senate remains to be seen.
With its advocacy efforts, the KBA had a very busy first month of the legislative session. The KBA reviewed nearly 100 proposals and took positions on nearly a dozen. These issues range from the Uniform Family Arbitration Act (which has been in the works for over a year), to shared parenting issues and electronic notary updates. Below is information on some of the issues still in play for the KBA.
HB 2333 – Allowing a court to order a final adoption decree take effect at an earlier date.
The KBA was asked to review and provide comment on HB 2333 by the House Judiciary Committee. The issue centers around a Leavenworth family who adopted a child from South Korea. However, for immigration purposes the child needed to be adopted prior to her 16th birthday. This adoption failed to meet that deadline; thus, the child cannot become a naturalized US citizen. The case is ongoing.
HB 2401 – Providing an exception to the quorum requirements for certain corporations
The KBA has serious concerns about this bill as it lowers to needed quorum requirement to 10% of shares entitled to vote. By lowering the quorum less people are needed to alter article of incorporation and/or bylaws. HB 2401 does not conform to any Delaware law on the issue. The KBA Business and Corporation section is working with Rep. Highberger on a non-legislative solution.
HB 2447 – Increasing the use of audio/visual technology in courtrooms
The Office of judicial Administration introduced a bill to increase usage of audio/visual technology in courtrooms. The bill would allow any court to use the new technology if applicable. By using audio/visual tech, defendants would not have to travel to the court for many preliminary hearings, saving the county money on travel and staff time. The committee heard from Johnson County clerks about the possibilities in the new courthouse.
Rep. Kellie Warren (R-Leawood) felt the bill went too far by removing various safeguards regarding witness testimony. The language she took issue with can be found in Section 13 of the bill.
Sec. 13. K.S.A. 2019 Supp. 60-243 is hereby amended to read as follows: 60-243. (a) Form and admissibility.
At trial, the witness' testimony must be taken in open court, unless otherwise provided by law. For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location Testimony by contemporaneous transmission from a different location may be allowed whenever any party requests the use of two-way electronic audio-visual communication by written notice at least seven days prior to the scheduled hearing or proceeding. Such notice shall include the name and internet protocol address of the witness who will testify by two-way electronic audio-visual communication and the date and time the witness will testify.
The KBA SUPPORTS this bill.
HB 2461 – Public Litigation Coordination Act
The bill is sponsored by Kansas Attorney General’s office and would require public entities to receive permission from the KSAG prior to entering a contingent fee contract. We have seen several municipalities sue large corporations over the opioid epidemic and over underage vaping. Local units of government would need to apply to the KSAG for permission to enter these contracts. The KSAG would have sole discretion in approving the applications. Applications would be approved if the KSAG determined that the contract served the public interest and did not impede the legal interests of the State.
The KBA has a long-standing policy opposing litigation restriction measures. The KBA submitted written testimony in opposition. The League of Kansas Municipalities, Kansas Association of Counties, KTLA and possibly the KS Association of School Boards joined the KBA in opposing this measure.
It appears there have been negotiations between the local government associations to include language that would exempt them from certain requirements of the new act. That new language will determine the fate of the legislation. The KBA OPPOSES the bill as it was introduced.
HB 2500 – Uniform Power of Attorney Act
The Kansas Judicial Council introduced this bill that amends “power of attorney” in Kansas. The bill would require third parties to accept a PoA as long as it substantially complied with certain requirements. Those third parties would be exempt from liability when they accept those documents. This proposal has been around for several years, but this is the first time the Judicial Council formally introduced it.
The House judiciary Committee was very skeptical of the proposal. Committee members had difficulties with the provision concerning exemptions from liability. In Section 2 of the proposal, the third party is not responsible for determining if the attorney is in fact exceeding his authority or improperly exceeding the PoA’s authority.
HB 2533 – Uniform Family Law Arbitration Act
The KBA introduced this bill in House Judiciary Committee. The Uniform Family Law Arbitration Act (UFLAA) creates a statutory scheme for the arbitration of family law disputes. Arbitration is a private process that parties may use to resolve a dispute rather than going to court. During an arbitration, a neutral third party—the arbitrator—hears arguments from the parties, evaluates evidence and offers a decision on the dispute. Although arbitration has long been used in the commercial context, it has recently begun to gain popularity in the family law sphere.
Under the UFLAA, a “family law dispute” is a contested issue arising under the state’s family or domestic relations law. Family law disputes typically include disagreements about marital property, spousal support, child custody and/or child support.
Under the Act, an arbitrator may not:
- grant a divorce;
- terminate parental rights;
- grant an adoption or guardianship of a child or incapacitated person; or
- determine the status of a child in need of protection.
The Act sets out arbitration procedures chronologically, from defining an arbitration agreement to providing standards for vacating a confirmed award. Many of the provisions of the UFLAA will be familiar to arbitrators and practitioners of dispute resolution. This is because the UFLAA is based in part on the Uniform Arbitration Act (1955) and Revised Uniform Arbitration Act (2000). The UFLAA’s provisions for arbitrator disclosure, award, appeals, and arbitrator immunity are, among others, drawn substantially from these earlier uniform acts. The KBA SUPPORTS this bill.
SB 157 – Presumptive Shared Parenting Plans
This bill amends the Kansas Family Code governing temporary parenting plans. The proposal would require equal access to the child from the filing of a divorce action to the entering of a permanent child custody order. The temporary parenting plan awarding joint legal custody will presume to be in the best interest of the child. However, if there is documentation or other information supporting a finding of domestic abuse, there would be a finding that temporary joint legal custody is not in the best interest of the child.
This bill was sponsored by 17 senators, supported by the Senate Judiciary Committee and all three lawyer/legislators. The Senate approved the bill 39-1 (Sen. Dinah Sykes, D-Lenexa, the lone NO vote.) The KBA OPPOSES this bill.
SB 269 – Increasing the age of retirement for judges from 75 to 80
Sen. Vic Miller (D-Topeka) introduced this bill. It increases the mandatory retirement age for judges from 75 to 80. This would affect 5 current judges who will otherwise be forced to retire before the end of their current terms. The Senate Judiciary Committee passed the bill out favorably, but the Senate sent it back because it would apply to appellate judges. The KBA SUPPORTS this bill.
SB 334 – Modifying certain rules of evidence to conform to the federal rules of evidence
The Kansas Judicial Council introduced this bill in response to a Kansas Court of Appeals case: State v. Patrick, No. 117516 2018 WL 4374269 (Kan. App. 2018) which stated that a printout of an implied consent form in a DUI action was not the best evidence since the original was not lost or destroyed. SB 334 would eliminate this uncertainty by updating Kansas evidence rules with Federal rules.