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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.

 

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Turnaround 2020

Posted By Joseph N. Molina III, Monday, February 24, 2020

This Thursday. February 27th,  the Kansas Legislature will hit its midway point, when bills not passed out of their House of Origin can no longer be passed into law. This day, commonly referred to as “Turnaround,” most of the bills introduced this session fall by the wayside. There are still procedural maneuvers that optimistic lawmakers can use to survive this deadline. They can introduce their bill into an exempt committee, (House Appropriations, Senate Ways & Means or either chamber’s Federal & State Committee, or they can have their bill “blessed” by leadership.) To be “blessed,” the bill must be referred to one of these exempt committees. The water cooler talk is that the Kansas Senate plans to take a bare bones approach to Turnaround and not bless as many bills as in past years.

The KBA had a productive Week 7. Last week, the KBA focused on four bills dealing with legal fees and legal advertising. These bills are:

SB 444

Public Litigation Coordination act to restrict certain contracts by public entities for legal services on a contingency fee basis

SB 445

Defining and prohibiting certain deceptive lawsuit advertising practices and restricting the use or disclosure of protected health information to solicit individuals for legal services.

SB 446

Enacting limitations on contingency fee agreements in certain civil actions

SB 447

Providing for joint liability for costs and sanctions in third-party funded litigation, requiring certain discovery disclosures and requiring payment of certain costs for nonparty subpoenas.

 

The KBA issued a Call to Action that urged KBA members to contact Senators to express their concerns with these bills. The Call to Action was emailed to 5854 individuals. Some 1624 individuals opened the email, with 204 taking additional action of reading the bill and searching for their Senator.

At present, these bills HAVE NOT been set for hearing. Furthermore, these bills HAVE NOT been referred to any exempt committee. Should these bills not be “blessed,” they will be stricken from the calendar. The only option then would be for the sponsors of the bills to re-introduce them into an exempt committee after the deadline. We have a week left, so it is still possible one of these options are used could be used to keep the bills active past the deadline.

With the Senate bills tied up, the Kansas Attorney General is using the amendment process to move his issue forward. The KS AG introduced HB 2461 in January. That bill banned contingency fee contracts entered by public entities. HB 2461 is titled the Public Litigation Coordination Act. The KBA opposed this bill and the bill languished. The KS AG will attempt to amend the bill in committee. They will use the language in SB 444. The KBA has expressed its opposition to the amendment.

Judicial Branch Budget

The General Government Budget committee held a hearing on the Judicial Branch Budget this week. Chief Justice Marla Luckert presented to the committee. The KBA submitted testimony in support of the supplemental request for $17.1 million to fund salary increases for judges and staff. The committee plans to work this budget this week. Raises will help with our national ranking which places Kansas near the bottom in every judicial salary category. See the latest Judicial Salary Chart - https://www.ncsc.org/salarytracker.

Other news

The House has passed HB 2447, audio/visual use in courtrooms. The final vote was 83-39. This bill goes to the Senate now.

House Judiciary approved HB 2533, family law arbitration act. The bill will be debate on the House floor next week.

House Judiciary approved HB 2713, revised Uniform Laws on Notarial Act. This bill will also be debated on the House Floor next week.

House Local Government has referred HB 2600, Contract for Deed proposal to the Kansas Judicial Council. The KBA opposed this bill and suggested that the referral be made to better study the issue.

Senate Commerce declined to add an amendment to SB 424, extending the effective date for certain LLC statutes until July 1, 2022. The amendment would have added fictitious name statutes to names that can be filed with the Secretary of State’s Office. The KBA opposed this amendment as it interferes with federal and state trademark laws. The amendment may return as a stand-alone bill.

This will be a long week at the Capitol. Look for daily updates via live tweeting @KansasBarLeg.

Tags:  Author: Joseph N. Molina III  contingency fee contracts  contract for deed  family law arbitration  judicial branch budget  Public Litigation Coordination Act  s  Turnaround Deadline  use of audio/visual in courtrooms  Weekly-2020-02-25 

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Legislative Alert and One Month Update on the 2020 Legislative Session

Posted By Joseph N. Molina III, Tuesday, February 11, 2020

Legislative Alert

 

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 info@ksbar.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.

 

 

 Attached Files:

Tags:  Abortion amendment  Author: Joseph N. Molina III  Contingency Fee Contracts  HB 2333  HB 2401  HB 2447  HB 2461 Public Litigation Coordination Act  HB 2500 Uniform Power of Attorney Act  HB 2533 Uniform Family Law Arbitration Act  Legal Advertising  Medicaid Expansion  SB 157  SB 269  SB 334 

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