the · 2019-04-05 · the BarLetter Apr/May 2016 3 the BarLetter, the oﬃcial publication of the...

Inside this Issue >JCBA’s 2016 Herbert W. Walton Bench/Bar Conference

Clean Up Day with JCDS

What Our Children Can Teach Us

Going Solo: Better than Advertised in 2016

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Volume 32 • Issue 2 • April/May 2016Published by the Johnson County Bar Association

the BarLetter Apr/May 2016 3

the BarLetter, the official publication of the Johnson County Bar Associa-tion, covers legal news and issues of interest to members. Articles are in-tended to generate ideas readers can apply to their own practice. the Bar-Letter is distributed to approximately 2,000 attorneys, judges, and legal pro-fessionals in Johnson County and the surrounding county area. The publica-tion of any advertisement or product information is not to be construed as an endorsement of the product or ser-vice offered unless the ad specifically states that there is such an endorse-ment or approval. the BarLetter is a non-partisan publication intended to inform our members, provide services to our members, and give members an opportunity to contribute to the asso-ciation. Statements or expressions of opinions are those of the authors and do not necessarily represent those of the Johnson County Bar Association.

Scott Gyllenborg - Managing Editor/Committee Chair

Hon. Brenda CameronMelissa CarpaniJeffrey Deines

Christopher GordonShane J. McCall

John PickettZachary Roberson

Hon. Thomas Sutherland

Tracey DeMarea - Editor

- Articles are Welcome -Please send to

[email protected]

President’s Page. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Johnson County Law Library. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5JCBF President’s Page. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Foundation Fellows . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Going Solo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8JCBA’s 2016 Herbert W. Walton Bench/Bar Conference . . . . . . . 10Immigration Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12Clean Up Days for JCDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16CLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 What Our Children Can Teach Us . . . . . . . . . . . . . . . . . . . . . . . . . . . 18Bar Updates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Classified Ads . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Dear Isaac . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

JCBA Bar Luncheons are a member benefit for JCBA members and begin at 11:30 a.m. (unless otherwise stated) on the first Wednesday of each month, except July and August, at the Ritz Charles, Overland Park. RSVP is not required.

June 1, 2016 - 5pm - Judges Appreciation (BBQ and Beer!)

ON THE COVER: BIGSTOCK-INDEPENDENT-THINKER-91533548.JPG

>

PG. 8 PG. 10 PG. 11

4 the BarLetter Apr/May 2016

might think that many times, after a rather heated court proceeding, the lawyers would resume their debate outside the courthouse in a brawl! Unfortunately, this has occurred. However, we know it is more likely the lawyers would be found talking about their families, their recent vacation, other interesting cases they have, etc. We know this is how the true professionals of our trade conduct themselves. Many, but not all.

I remember attending an event on ethics and professionalism a few years ago. A few minutes after the program started, I found myself looking around the room and notic-ing that everyone I saw there that I knew, didn’t need a symposium on ethics and professionalism; they al-ready possessed and practiced those skills and traits. Then my mind took the unfortunate turn of thinking of several lawyers I had encountered over time, both in private practice and on the bench, who I wished were there because they definite-ly could have benefited from the program.

Similarly, I suspect those of you who are already members of our Bar Association and attend As-sociation events already know of the importance of our profession and understand the importance of an independent judiciary. You are also aware of the professionalism and commaraderie that develops from participation in Bar events. You also know how much more en-joyable the practice of law can be when practiced at a high level of competence and with professional courtesy.

In conclusion of my last Presi-dent’s article, I would humbly ask the following of you: I ask you to reach out to those who are not members of the Johnson County Bar Association and encourage them to become members and be-

JCBA President’s Page >ple charged with horrific crimes or deeds are entitled to fair and impar-tial trials and a zealous protection of their Constitutional rights; and to a judge who will rule based on a fair application of the law. That even people who are not powerful and/or wealthy are entitled to access to the courts, as well as fair and cour-teous treatment in court. Maybe if these principles, and the reasons for them, were explained to our non-lawyer friends, it would reduce the attacks upon our profession and the judiciary.

After seeing that movie, I thought about other noble lawyer characters. I do not see how a lawyer could read or watch “To Kill A Mockingbird” and not admire Atticus Finch for his pas-sion. But I can understand why some non-lawyers would be perplexed as to why he would risk so much when a much easier path could have been chosen. However, I also thought of less desirable characters. I often find it entertaining to see how law-yers are portrayed in movies and television. I still laugh every time I watch “My Cousin Vinny”, and I of-ten feel just a tinge of guilt when I chuckle as I watch “Slippin Jimmy” Jimmy McGill (Better Call Saul) slither his way through his practice of law. But we lawyers take comfort in knowing these are caricatures of lawyers, and although these charac-ters are entertaining, they are not true representations of who we are. Unfortunately, I suspect there are a number of people who believe that Joe Pesci’s portrayal of our profes-sion is more representative than Tom Hank’s.

It occurs to me there is another characteristic that most of us possess that non-lawyers do not understand. How can two lawyers who represent clients who oppose each other, per-haps even despise each other, re-main friends or at least have mutual respect as colleagues? A non-lawyer

I recently watched the movie “Bridge of Spies”. In addition to being a darn good movie, the film

reminded me of how much we, as lawyers, both appreciate and pro-tect so many of the principles that make our country unique and great. I am not sure I could be as noble as James Donovan (Tom Hanks’ char-acter) given the threats to his career and to his family, but I understood his passion and admired his dedica-tion to the protection of his client’s constitutional rights. Conversely, I bristled at the Judge’s attitude that the proceedings were essentially a charade to make it appear to the rest of the world the spy was getting a fair trial. (Reminiscent of the old, “Let’s give him a fair trial and then hang him.”)

I suspect if you watched that movie with a non-lawyer spouse or friend, it may have been easier for them to understand and identify with the Judge, rather than Dono-van. I mean the guy was a spy, right! There are many things we, as law-yers, understand and feel passionate about that our non-lawyer friends simply do not understand. Many non-lawyers do not understand that under our Constitution, even “bad” people deserve good lawyers to represent them. That even peo-

By Judge Thomas Sutherland, 2015-2016 JCBA President


come active participants. I ask that you stand ready to help educate the public about the importance of the legal profession in protecting those rights guaranteed to all, and that this can only be accomplished with an independent judiciary. Lastly, I ask that as you practice your profes-sion, you seek to bring respect and dignity to the profession by being more like Atticus Finch and less like Slippin Jimmy.


We are all asked to give of our time and resources from a variety of sources.

For this issue of the BarLetter, we want to highlight those who have answered the call to give back to our community by becoming a Fel-low of the Johnson County Bar Foundation, enabling us to con-tinue to support local charities that benefit women, children and access to justice. I extend a very heart-felt “thank you” to those Fellows listed, for your time and funding of our charitable efforts. If you have

questions about becoming a fellow or learning more about the Foun-dation and what we do, please visit our page on the Bar Association website (www.jocobar.org) or con-tact me directly at [email protected]. Contributions to become a Fellow can made over 5-10 years and are fully tax deductible. I en-courage you to join us.

JCBF President’s Page > By Jason C. M. McClasky, 2016 JCBF President

JOHNSON COUNTy BAR FOUNDATION FELLOwS

Tom BathGyllenborg & BrownJohn P. Gerstle

Thomas A. HamillGerald & Maureen KingTimothy/Stephanie Tucker Muir

Payne & Jones

Erker Law Firm Paul Morrison

Charles J. AndresErnest C. BallwegTom BenderRay L. BorthAnne E. BurkeHon. Brenda CameronAndrew DeMareaHon. J. Charles Droege

Timothy G. ElliottTyler GarretsonLynn R. JohnsonRobert W. LoydScott M. MannMcConwell Law OfficesJ. Brett MilbournMatthew C. Miller

Loren Moll Hon. Kevin MoriartyGreg MusilJames R. ShetlarNeil R. ShortlidgeDaniel W. VokinsLarry Winn, IIIJean Wise

Dolly AndersonEmil C. AndersonSteven R. AndersonChristopher J. AnglesArmstrong TeasdaleHon. Karen Arnold-BurgerFrank L. AustenfeldJ. Nick BadgerowJerome V. BalesEugene Balloun

Tricia A. BathKevin L. Bennett Roy S. Bennett, JrVictor A. Bergman Jacquelyn P. BernhardtRobert J. Bjerg Jon A. Blongewicz Richard L. BondCarly F. BootheKevin J. Breer

Jerold A. Bressel Thomas J. H. Brill Hon. Sam K. BrunerG. Peter Bunn, III Paul BurmasterMichelle W. BurnsRichard W. Byrum Robert S. CaldwellRandal Carlson Frank A. Caro, Jr.

FellowFellowFellow


Melanie CaroCarl J. Circo Hon. William A. CleaverKarrie & Sean ClinkinbeardDennis M. Clyde Linda CoffeeBarton P. CohenClifford A. Cohen Cheryl Cook Boushka Carl E. CornwellJason CovingtonGerald Lee Cross, Jr.Kevin E. Dellett Sue DickeyJoseph L. DioszeghyKeith E. DrillRobb Edmonds James L. Eisenbrandt Stephanie A. Elliott Hon. Michael Farley G. Michael Fatall Lawrence L. Ferree, III Hon. John T. Flannagan Hon. Thomas FosterFoulston Siefkin LLPDrew FrackowiakLawrence C. Gates Stephanie Goodenow Christine M. GrahamKenton C. Granger Richard G. GuinnAngela Gupta Hon. Christina Dunn GyllenborgLeonard A. HallRobert L. Hamann Hon. Harold L. HammondNathan C. HarburJ. Ryan Hare Patrick H. HearnJay E. Heidrick Steven D. HenryPaul K. Hentzen Charles W. HessG. Taylor Hess David R. Hills Mark D. Hinderks Casey O. Housley James R. HubbardWilliam F. Hurst Teresa J. James Carston C. JohannsenJohn H. Johntz, Jr. Michael S. JonesPeter A. Jouras, Jr.Lori S.B. JusticeJill K.B. KenneyGreg Kincaid Douglas Lancaster

Bruce F. Landeck Robert E. Lastelic Hon. Steve Leben Russell C. Leffel Brian L. Leininger Lentz & Clark Brett LeopoldMick Lerner Howard Levitan Lewis R. Lewis (Honorary)Robin A. LewisHon. James K. LoganLogan & Logan S.W. Longan, III Robert W. ManskeT. Bradley Manson Barry D. Martin David K. MartinKeith Martin Jacob F. May, Jr. William A. MayerBruce D. Mayfield Hon. Patrick D. McAnany Hon. Timothy P. McCarthyHon. Larry McClain Jason C.M. McClasky Richard McEachenMichael McElhinneyDouglas C. McKenna Timothy A. McNearneyMira MdivaniRichard T. Merker Marcia L. Montgomery Dennis Moore Valerie L. MooreAmy MorganScott C. NehrbassGunnard Nelson William V. North Joe L. Norton Jay Norton Diane Nygaard Tim O’Brien James D. OliverJames R. OrrThomas C. Owens Mark Parkinson Stacy Parkinson Douglas PattersonN. Trey Pettlon, III Timothy V. Pickell Marvin E. Rainey Richard D. RallsChristopher M. Reecht Michael D. Reed Cheryl L. Reinhardt Rod Richardson Zachary Roberson

Mark Rohrbaugh Jacquelyn E. Rokusek William P. Ronan, III Hon. Peter V. Ruddick Tony Rupp Hon. Gerald L. Rushfelt Bradley S. Russell Hon. Janice D. RussellThomas E. Ruzicka Hon. Thomas Kelly RyanSteven G. Sakoulas William R. SampsonDionne Scherff David C. Seitter Arthur K. Shaffer Hon. Lawrence E. SheppardShook, Hardy & BaconJ. Bradley Short Steve Six Linda Scott Skinner Stephanie M. Smith Edwin M. Soltz James F. StanleyRoger D. Stanton Frederick K. Starrett Alan R. StetsonDaniel E. StuartHon. Thomas SutherlandHon. Stephen Tatum Tenth Judicial DistrictAmanda A. Thilges Karen L. TorlineHon. Linda S. Trigg Thomas VanDyke Debra Vermillion John Vratil Hon. Kathryn H. Vratil Richard H. Wagstaff, III Michael R. Wallace Jerry Wallentine William K. Waugh, III Hon. David Waxse Christian Webb Hon. Sara Welch Charles E. Wetzler Lisa R. WetzlerDavid W. White Melinda S. Whitman Michael E. WhitsittClarence R. WietharnJames T. Wiglesworth Matthew J. Wiltanger Ronald P. Wood David P. Woodbury Stanley N. Woodworth Ina Kay Zimmerman

GOING SOLO:


We’ve all heard the oft-quoted rhetoric about the dangers of going solo: “You’ll be eaten alive by ad-ministrative work;” “Economies of scale favor larger firms;” “Clients want the comfort of hiring a firm, not a lone ranger.” While there is some validity to all of those statements, their truthiness is outweighed by their fiction. Let me tell you about it.

By my own free will and accord, as of February of this year, I’m a solo practitioner. Prior to this Feb-ruary, I was a senior associate attorney at a well-established, Kansas City, Missouri firm; prior to that, I was an associate attorney at a well-established, Wichita-based firm; and, prior to that, I had clerked or interned for three law firms. In short, even though I may be a young attorney, I didn’t just fall off the turnip truck.

So Here Are Four Advantages To Going Solo In 2016

1 Client Conflicts Are Much Less Prevalent. Within a firm setting, conflict checks are performed routinely. (They are performed routinely in solo practices as well, but their results are, hopefully, unsurprising.) From time to time, a firm attorney will be ethically barred from handling a matter

due to an actual conflict of interest. This is an expected cost of doing business within a law firm. What a firm attorney must also endure, however, is the occasional plea that he or she not handle a matter due to a “political” conflict of interest. A political conflict of interest is not a true conflict of interest but rather an attempt by one firm attorney to protect his or her book of business to the detriment of another. I’m not suggesting that these attempts to protect are improper or that their proponents deserve to be upbraided. We all work hard to develop good clients, and we don’t want to run the risk that our client relationships could be extinguished by our partner’s representation of a distantly adverse client or cause. Practicing independently slashes down both actual and political conflicts of interest to a faint blip on the radar.

2 Attorney Referrals Are More Frequent. A typical selling point of full-service law firms is that they are capable of serving the client’s every need. Nearly every attorney at every full-service law firm understands this concept. Similarly, it is understood that, should a matter arise outside of the

firm’s capability (or constitute an actual or political conflict of interest), a referral to another full-service law firm may result in the loss of the client. The law firm to which the referral is made may transition their isolated service request into performing additional, unrelated services at the call of the client. Even if the law firm to which the referral is made has a strict no-poaching policy, the referring law firm’s fear of the potential loss of the client still stifles its interest in chancing the referral. (And in the modern era of law practice, in which clients switch their loyalties to different attorneys as often as attorneys do to other law firms, this fear has legs.) As a consequence, full-service law firms are more inclined to make a referral to a solo practitioner: an attorney who does not pose a risk of client poaching but rather will handle the spe-cific matter, and no others, on a one-time basis. Referring solo practitioners often feel the same way; i.e., they hesitate to make a referral to a full-service law firm out of fear of the client’s loss and, in lieu thereof, refer their client to an unaffiliated, less threating, fellow solo practitioner.

By MAtthew kinCAid

BETTER THAN ADVERTISED IN 2016


3 Marketing Messages, Branding Are More Effective. Most businesses thrive on the concept of a unique selling proposition – a personal brand, product, or service offering that differentiates the business from its competitors. Successful law firms, implicitly or explic-

itly, have their own unique selling propositions; however, those propositions can easily be lost on their target audience. Consumers of legal services are hit with mixed messages about what a law firm actually does. Advertisements and marketing campaigns centered around trademark law one month, civil litigation the next, and space law the next leave a prospect confused as to what needs for which he or she should consider contacting the firm. Solo practitioners, on the other hand, with their more concentrated service offerings, more effectively capture the attention of their target market.

4 Overhead Is Less Expensive Than Ever Before. This section is intentionally truncated to meet character limits, but it’s also intentionally focused on marketing and advertising costs as a function of a modern solo practitioner’s overhead. In 2016, it is almost hard to believe

how many entirely free resources we have at our disposal – LinkedIn, Twitter, Facebook, Avvo, blogs, etc. Last but not least, we still have the entirely free resource that predates the Internet and even the practice of law itself – word of mouth. Among these resources, solo practitioners have everything they need to tactically place themselves in front of their target audience and without incurring any hard costs in so doing. You may be wondering what the soft costs are or how time intensive these various online resources may be. Here’s the concise answer: the above-mentioned online resources, and similar others, mandate a front-loaded time investiture; after your accounts or pages are established, a mere two to five hours per week suffices to maintain them.

In 2016, the dangers of launching a solo practice are outweighed by the rewards – less conflicts, more referrals, better marketing, and less overhead.

ABOUT THE AUTHOR:

Matthew T. Kincaid is the founder of Kin-caid Business & Entrepreneurial Law, LLC . He also is a lecturer at the Univer-sity of Kansas School of Business and an adjunct professor at the University of Missouri - Kansas City School of Law .

JCBA’S 2016HERBERT W. WALTON

BENCH/BARCONFERENCE


Judge Bland giving the key note speech on the Veterans Court of Jackson County .

Judge Arnold-Burger addresses the audience on ‘The Rule of Law, the Justice System and their role in a Constitutional Democracy’ .

Ron Nelson, winner of the Justinian Award .

LJ Leatherman presenting one of two Ethics Session .

JCBA’s Herbert W. Walton Bench/Bar Conference was held on March 2, 2016 at the Ritz Charles, Over-land Park. This year, more than 210 attorneys and judges were in attendance, and the event included 15 CLE presentations, with the key note address given by Judge Ardie Bland from the Jackson County

District Court.This year the Justinian Award was presented to Ronald Nelson. The Award recognizes an attorney who

has exemplified integrity, service to the community and to the legal profession and warmth, friendliness and camaraderie.


Victor Bergman and Judge Karen Arnold-Burger .

Judge Chuck Droege, Judge Tim McCarthy and Judge James Vano .

David Samms, Ashley Akers and Kip Randall .

Katherine Stocks and Judge Keven O’Grady .

Leda Gipson, Judge Thomas Sutherland and Donna Manning .

Andy DeMarea, Scott Gyllenborg and Tony Rupp .

Thank you to Our Sponsors & Vendors:


On November 20, 2014, Pres-ident Obama addressed the nation and announced that

he would take executive action to extend “protection from deporta-tion” and employment authoriza-tion to over 3,990,000 individu-als, approximately one-third of the United States’ undocumented im-migrant population.

During this address, the Presi-dent stated that this “Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA) program would “. . . offer the following deal: If you’ve been in America for more than five years; if you have children who are Ameri-can citizens or legal residents; if you register, pass a criminal background check, and you’re willing to pay your fair share of taxes - you’ll be able to apply to stay in this country tempo-rarily, without fear of deportation. You can come out of the shadows and get right with the law.”

The President acknowledged that he was acting without Con-gress’ cooperation or approval, but challenged “. . . to those members of Congress who question my author-ity to make our immigration sys-tem work better, I have one answer: pass a [comprehensive immigration reform] bill.”

COntrOversyThe executive action was imme-

diately controversial. Congressio-nal Republicans decried the order as an unconstitutional attempt by the President to circumvent Con-gress’ plenary authority over immi-gration, while Democrats asserted that it was constitutional, pursuant to the executive branch’s power to prioritize the prosecution of seri-ous crimes over less serious ones.

the depArtMent Of hOMeLAnd seCurity MeMOrAnduM

The same day as the President’s speech, Department of Home-land Security (DHS) Secretary Jeh Johnson issued an internal memo-randum directing several DHS sub-agencies to implement DAPA. The memorandum stated that:

“[d]eferred action is a long-standing administrative mecha-nism dating back decades, by which the Secretary of Homeland Security may defer the removal of an un-documented immigrant for a pe-riod of time. Deferred action is a form of prosecutorial discretion by which the Secretary de-prioritizes an individual’s case for humanitar-ian reasons, administrative con-venience, or in the interest of the Department’s overall enforcement mission.”http://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf.

The memorandum also made it clear that DHS intended to signifi-cantly expand the Administration’s 2012 Deferred Action for Child-hood Arrivals (DACA) program. Id.

the fight in COngressFollowing the President’s an-

nouncement, the U.S. House of Rep-resentatives passed a spending bill which allocated $40 billion to fund DHS and its sub-agencies through September 30, 2015, but included an amendment defunding Deferred Action. When the bill arrived at the Senate, Democrats filibustered its consideration several times, argu-ing for a DHS appropriations bill “clean” of the defunding language.

After several well-publicized bat-tles between Congressional Demo-crats and Republicans, the Senate rejected the House bill and passed

its own bill, free from any provi-sion defunding the President’s ex-ecutive action. On March 3, 2015, the House of Representatives voted on the Senate’s bill and approved it by a 257-167 margin. The bill passed with support from House Democrats and 75 House Republi-cans. Following the vote, Speaker of the House John Boehner stated that “[t]he good news is that the president’s executive action has been stopped, for now. This mat-ter will continue to be litigated in the courts, where we have our best chance of winning this fight.”

stAte Of texAs, et AL., v. united stAtes Of AMeriCA

As Speaker Boehner alluded, twenty-six states, including Kan-sas, have filed a federal lawsuit alleging that the President’s ex-ecutive action - as implemented by DHS - violates the Administrative Procedure Act (APA) and the Take Care Clause of the Constitution by failing to enforce existing immigra-tion laws, encouraging future illegal immigration, and forcing the states to provide additional law enforce-ment, health care, and educational facilities for those individuals cov-ered by DAPA. State of Texas, et al., v. United States of America, 14-CV-00254.

On February 16, 2015, the U.S. District Court for the Southern District of Texas issued a prelimi-nary injunction blocking DAPA and expanded DACA. Id. The court held that “[i]f the preliminary injunc-tion is denied, plaintiffs will bear the costs of issuing licenses and other benefits once DAPA benefi-ciaries — armed with Social Secu-rity cards and employment autho-rization documents — seek those benefits . . . Once these services are

Immigration Law > By Zachary P. Roberson, Roberson Law, LLC

An Update on “DAPA” - The President’s Executive Action on Immigration


provided, there will be no effective way of putting the toothpaste back in the tube should plaintiffs ulti-mately prevail on the merits.” Id.

the depArtMent Of hOMeLAnd seCuri-ty’s respOnse tO texAs v. united stAtes

On February 17, 2015, DHS Sec-retary Jeh Johnson issued a state-ment disagreeing with the court’s ruling and promising to appeal. However, the Secretary stated “we recognize that we must comply with [the injunction]. Accordingly, the Department of Homeland Se-curity will not begin accepting re-quests for the expansion of DACA tomorrow, February 18, as original-ly planned. Until further notice, we will also suspend the plan to accept requests for DAPA.” http://www.dhs.gov/news/2015/02/17/state-ment-secretary-jeh-c-johnson-con-cerning-district-courts-ruling-con-cerning-dapa.

distriCt COurt judge threAtens tO hOLd gOvernMent OffiCiALs in COnteMpt

An interesting side issue in the case involved a show-cause order is-sued by the District Court against DHS Secretary Johnson himself. According to the court, attorneys for the Justice Department had as-sured the court several times that no individuals had been granted benefits pursuant to the President’s program prior to the court’s injunc-tion. However, on March 3, DOJ at-torneys filed documents notifying the court that over 100,000 indi-viduals had been issued three-year employment authorization cards, pursuant to expanded DACA, after the President’s November 20th an-nouncement and prior to the court’s injunction. The DOJ attorneys also notified the court that DHS had is-sued employment cards to approxi-mately 2,000 individuals after the injunction was issued.

The judge was furious. On July 7, 2015, the District Court issued a “show cause order” directing all de-fendants in the case - including DHS

Secretary Johnson, Citizenship and Immigration Services Director Leon Rodriguez, Immigration and Customs Enforcement Director Sarah Saldana, Border Patrol Dep-uty Chief Ronald Vitiello, and Cus-toms and Border Patrol Director Gil Kerlikowske - to personally appear before the court and “be prepared to show why he or she should not be held in contempt of Court.” State of Texas, et al., v. United States of America, 14-CV-00254 (July 7, 2015), available at http://www.aila.org/File/Related/15070802a.pdf. The order stated that “[t]he Court was first apprised by the Govern-ment of the violations of its injunc-tion on May 7, 2015 . . . the govern-ment admitted that it violated this Court’s injunction on at least 2,000 occasions—violations which have not yet been fixed.” Id. The court chastised the Government for its “cavalier attitude” and failure to quickly remedy the situation. Id. However, the court did allow that if DHS could “remedy the situation and come into full compliance with this Court’s injunction by July 31, 2015,” it would cancel the show cause hearing. Id.

DHS then began an aggressive campaign to recapture the erro-neously-issued work cards. USCIS stated that “[i]f you are a DACA recipient who received a three-year Employment Authorization Document (EAD) after February 16, 2015, it was likely mistakenly issued and must be returned . . . Individuals who are required to re-

turn three-year EADs and have not done so will be contacted by US-CIS by phone or in-person. . . US-CIS may visit the homes of those individuals who have not yet re-turned their invalid 3-year EAD or responded to USCIS.” http://www.uscis.gov/archive/important-in-formation-some-daca-recipients-who-received-three-year-work-au-thorization-fact-sheet. The agency went on to state that “[i]f you keep the invalid three-year card, USCIS will terminate your DACA and all employment authorizations, and may consider your actions as a neg-ative factor in weighing any future requests for deferred action, or any other discretionary requests.” Id. As one can imagine, the recap-ture campaign was a source of sig-nificant stress in the immigrant community.

According to USCIS, the cam-paign to recapture the work cards was successful; the sub-agency stat-ed that it “has accounted for over 99 percent of the approximately 2,600 identified invalid EADs re-quiring return.” http://www.uscis.gov/humanitarian/daca-recipi-ents-who-received-3-year-work-permit-post-injunction-quick-facts. In response, the District Court excused Secretary Johnson and the other directors from at-tending the show-cause hearing, but made it clear that it expected DOJ attorneys to be prepared to explain the errors. “The court re-leases all individual defendants from its earlier order requiring


ABOUT THE AUTHOR:

Zachary P. Roberson is sole member of Roberson Law, LLC, an immigration law firm . Prior to opening the firm, Zach served as a Pro Bono Staff Attorney at Diocesan Migrant & Refugee Services, an El Paso legal aid clinic which pro-vides free and low-cost immigration services to indigent and low-income in-dividuals . Zach received his B .B .A . from Texas Tech University, his M .B .A . from Wayland Baptist University, and his J .D . from the University of Kansas . He may be contacted at 913-221-0848 or zach@robersonlegal .com .

mandatory attendance. Neverthe-less, the court remains concerned about the individuals that still pos-sess credentials issued in violation of the court’s injunction. Counsel for the government needs to be pre-pared to discuss the reasons that these individuals are not in compli-ance, the steps the government has taken and will continue to take to achieve complete compliance, and the timetable to achieve that goal in the very near future. The court does not consider mere substantial compliance, after an order has been in place for six months, to be ac-ceptable and neither should coun-sel.” State of Texas, et al., v. United States of America, 14-CV-00254 (August 11, 2015).

fifth CirCuit COurt Of AppeALsOn February 23, 2015, the

U.S. government appealed the District Court’s injunction to the U.S. Court of Appeals for the Fifth Circuit. Texas v. United States, No. 15-40238, (5th Cir. Tex. Nov. 9, 2015). On March 12, 2015, the DOJ filed a motion requesting that the Circuit Court issue an emer-gency order staying the preliminary injunction while the Circuit Court considered the appeal. Texas v. Unit-ed States, No. 15-40238, 2015 U.S. App. LEXIS 8657 (5th Cir. May 26, 2015). The motion for stay asserted that (1) the states do not have legal standing or a right to judicial re-view under the APA, (2) that DAPA is exempt from the APA’s notice-and-comment requirements, and (3) that the District Court decision granting the injunction constituted an abuse of discretion. Id.

On May 26, 2015, the Fifth Cir-cuit Court denied the government’s request for an emergency stay, hold-ing that Texas had standing to chal-lenge DAPA under the APA because the state could show (1) a “particu-larized, concrete injury” (2) that is “fairly traceable to the challenged action” and (3) is “redressable by a favorable ruling by the court.” Texas

v. United States, No. 15-40238 (5th Cir. Tex. May 26, 2015). The court also held that “the United States has not made a strong showing that it was clearly erroneous to find that DAPA would not genuinely leave the agency and its employees free to exercise discretion,” and that “the United States has not made a strong showing that it was likely to succeed on the merits.” Id. The injunction would remain in place pending the Fifth Circuit’s decision on the injunction’s validity.

On November 9, 2015, the Court of Appeals issued a deci-sion upholding the preliminary injunction. Texas v. United States, No. 15-40238 (5th Cir. Tex. Nov. 9, 2015). The court held that “[r]eviewing the district court’s order for abuse of discretion, we affirm the preliminary injunction because the states have standing; they have established a substantial likelihood of success on the merits of their procedural and substantive APA claims; and they have satisfied the other elements required for an in-junction.” Id. The court went on to state that “[a]lthough prosecutorial discretion is broad, it is not ‘unfet-tered’ . . . [r]egardless of whether the Secretary has the authority to offer lawful presence and employ-ment authorization in exchange for participation in DAPA, his doing so is not shielded from judicial review as an act of prosecutorial discre-tion.” Id.

petitiOn fOr CertiOrAri, And An unCertAin future

On November 20, 2015, exactly one year after the President’s DAPA announcement, the Department of Justice filed with the U.S. Supreme Court a Petition for a Writ of Cer-tiorari, requesting that the Court accept the U.S. Government’s ap-peal from the Fifth Circuit’s ruling. http://www.scotusblog.com/wp-content/uploads/2015/11/US-v.-Texas-Petition-15-674.pdf.

On January 19, the Court agreed to consider the case, and oral argu-ments were scheduled for April 18, 2016. Although some in the media and academia predicted that Jus-tice Scalia’s untimely death might cause the Court to remove the case from its calendar, oral arguments will be held as scheduled. A deci-sion is expected in late June.

For the moment, the immigra-tion fate of nearly 4 million un-documented immigrants remains in limbo. Many of these individuals have long-since heeded President Obama’s advice to “gather . . . pa-pers, make sure you can show you are a long standing resident of the United States . . . and make sure that by the time the legal issues are sorted out, you are ready to go.” For these people, the delay and uncer-tainty is undoubtedly excruciating.



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Jerry BalesMediator & ArbitratorDouthit Frets Rouse Gentile & Rhodes, LLC913.387.1200 � [email protected]

� 39 years litigation experience, 14 years as mediator and arbitrator.� Trials: personal injury, automobile, premises liability, insurance coverage, fraud, arson, product liability, professional liability, construction (commercial and residential), and business disputes.

What Our Children Can Teach Us About Dispute Resolution

By: Elizabeth Walsh

Lesson 1

From an early age we learn that disputes and conflict are an inevita-ble part of life. It is how we resolve these disputes that typically changes as the years go by.

We begin with what I learned from my tween daughter. Ah, the “tween” years. That space of time where they are no longer little kids, yet not quite teenagers. Already there seems to be an increased need for closed doors in my house.

Yet, while watching my daughter recently, it occurred to me that we could all learn a thing or two from tweens about how to tackle daily disputes and conflict in our adult lives and the lives of our clients. My 11-year-old was playing in a basket-ball game, a playoff game against the other team from their school. Friends playing friends, a packed gym. The environment in the be-ginning was intense, many of the girls seemed nervous. It was a hard- fought game, the girls on the oppos-ing teams seemed agitated with one another. Elbows were thrown. The final score was close. My daughter’s

team lost. I felt disappointment for her that a great season had come to a close. I knew how much the game meant not only to her but to the entire team. I thought my daughter and her teammates would be upset; I anticipated a few tears.

But as I walked over to console her, I saw that the girls from both teams were already posing for a group picture. Every single player was smil-ing ear to ear. The blue and white uniforms were all intermingled so that it was no longer a picture of two separate teams, but simply a group of happy friends and classmates. I could not believe how easily my daughter and her teammates transi-tioned from intensity and dismay to sheer joy.

As adults, it seems to take us much longer to adjust. But these girls were able to see the bigger picture at such an early age. While they all played their hearts out, in the end they were friends first, and that was what mat-tered most to them. They would be together in their classrooms again on Monday.

Parties going through conflict very often cannot see the forest for the trees. They become so bogged down on the smaller issues, or hurt feelings, that they don’t realize their long term ability to co-exist or to co-parent can sometimes be irreparably harmed. They cannot imagine the soccer games they need to attend to-gether, the birthday parties, gradua-tions and eventual weddings.

Similarly, parties in a contested probate case, very often family mem-bers, become so engulfed in anger and hurt feelings that they seem to lose track of the relationships that existed before conflict arose.

Everyone will benefit in the long run if as attorneys and mediators we focus not only on the typical issues during our cases, but help our clients stay focused on the bigger picture. The conflict is usually temporary, but the healthy relationships we help fos-ter can last a lifetime, with a little per-spective from the children.

ABOUT THE AUTHOR:

Beth is an attorney & mediator at Boothe Law & Mediation, LLC . She has been prac-ticing law for over fifteen years . She relo-cated to the Kansas City area a few years ago from the east coast . Beth is happily married and the mom to three children . This is the first article in a four-part se-ries, highlighting the lessons we have learned from our children of varying ages about conflict resolution . As attor-neys and mediators, guiding our clients through difficult times in their lives can be challenging . We are always search-ing for better ways to improve conflict resolution .


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Office SpaceOffice space for lease in established law firm with 4 attorneys convenient-ly located near 95th and Metcalf with ample parking. One attorney office available, fully furnished. Recently updated office suite includes recep-tion area, conference room, and work room; telephone, copier, and internet provided. For information, call Ed Soltz 913-341-0303.

Overland Park Office Space – Office available in highly visible of-fice building located on College and Antioch. Easy access to 69 and 435. Cross-referrals. Contact Todd at 913-735-5115 or [email protected].

First class office space available across from the Johnson County Court House - 1500 to 7000 square feet. Fourteen offices with reception area, conference room, break room, file rooms and computer room. In-ternet, phone, tv and private parking. Call (913) 210-8344.

Two large freshly painted of-fice spaces - completely furnished, available, located at 100 E. Park Street, Suite 8, Park Cherry Building, downtown Olathe. Offices are across

CLASSIFIED ADSthe street from the Johnson County Courthouse. Hardwood floors, blend of historic and contemporary decorat-ing. Services available include tele-phone, internet, copier/scanner/fax, conference room, full kitchen with eating area. Receptionist services are available. Potential for reciprocal referral fees. Call or email [email protected], (913) 782-5885 for more information.

Office Building Available – 113 S. Kansas Avenue, Olathe, KS. Call Brad Manson, 913-498-8080.

Office Space Available for one attorney. Olathe – across from courthouse. Receptionist, phone w/voice mail, copier, fax and high speed wireless internet access provided. Secretarial negotiable. Contact Paul Morrison, (913) 780-6666.

Space Available in Established Law Office – Fully-furnished space is available immediately in an estab-lished law office in Southcreek Office Park, at 132nd and Metcalf. Individ-ual offices for as many as two law-yers, plus staff, are available and are fully-furnished. The office includes a formal reception area, a large confer-ence room, a kitchen, a work room, and a storage area. For information contact Mick Lerner, (913) 897-5050.

Office available for lease in an office suite building near College Bou-levard and Nall in Leawood, Kansas. Receptionist, phone, internet, confer-ence rooms and more are all provided in base rent. Business referrals pos-sible. Contact Glen Beal at [email protected] or (913) 387-3180.

Leawood Law Offices. Bright/modern law offices on second floor of bank building at 135th and Mission. One large attorney office available, as well as smaller office suitable for support staff if needed. Sophisti-cated phone system, internet, high-speed copier/printer, and lunchroom.

BAR UPDATESJennifer Hagg has joined the law firm of Short, Borth & Thilges of Overland Park as an associate in the field of family law. A graduate of the Uni-

versity of Kansas, she received her Ju-ris Doctorate from Washburn Univer-sity School of Law. Prior to joining the firm, Hagg gained invaluable experi-ence working for the Department for Children and Families (formerly SRS), as well as by serving as the Interim Court Trustee of Johnson County.

Matthew T. Kincaid has opened the law firm of Kincaid Busi-ness & Entrepre-neurial Law, LLC, ef-fective February 2016. Located in Leawood,

the firm will serve as outside gen-eral counsel to small businesses and entrepreneurs. Mr. Kincaid was previously a senior associate attorney at Dysart Taylor Cotter McMonigle & Montemore, P.C .

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Historic downtown Olathe of-fice space available - Reception, telephone, cable, copier and internet services provided in well-established office. Call Brian Paden or Lewanna Bell-Lloyd at (913) 782-5544 for more information.

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OpportunitiesSmall Johnson County law firm looking for experienced litigation support attorney. Tasks involve drafting motions, preparing and sending discovery and assisting in court hearings and motions. Must have a J.D. degree, excellent writing and verbal communication skills and familiarity with federal court practice. Technical expertise and two to five years of experience in a legal environ-ment desired. Please send resume and cover letter, including salary expectations to Blind Box 1601, c/o Johnson County Bar Association, 130 N. Cherry, Suite 202, Olathe KS 66061.

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Qualified Domestic Relations Orders – Experienced attorney will assist you on a flat fee basis with preparation and qualification of QDROs. Contact Frank Taylor at (913) 782-2350.


DEAR ISAAC... Dear Isaac – I am an openly gay attorney and was recently fired from my job. When I was fired, I was told that my work product is very good and I meet all my deadlines, but “the partners decided they could not tolerate my lifestyle.” Isn’t this employment discrimination? Sincerely, “What’s Next?”

Isaac Keppler, Colantuono Bjerg & Guinn, LLC

Dear “What’s Next?” - Twenty-two states currently have laws preventing discrimination based upon sexual orien-tation. See www.lgbtmap.org. Regionally, the answer is not entirely clear. Under Kansas Law, there is no protection from discrimination based on sexual orientation. Last October, the Missouri Court of Appeals for the Western District of Missouri considered whether the Missouri Human Rights Act (MHRA) prohibits discrimination on the basis of sexual orientation. See Pittman v. Cook Paper Recycling Corp., 478 S.W.3d 479. (Opinion issued October 27, 2015) (motion for rehearing denied November 24, 2015). The plain language of the MHRA prohibits an employer from “discriminat[ing]…because of…sex.” RSMo Section 213.055.1(1)(a). The majority held that “Without the leg-islative addition of ‘sexual orientation’ to the statutory list of protected statuses, the Missouri Human Rights Act does not prohibit discrimination based upon a person’s sexual orientation.” Pittman, 478 S.W.3d at 483. Evidently this decision was not an easy one. Of the three judges who presided over the appeal, one judge wrote a separate opinion stating he “respectfully and reluctantly concur[s] in the opinion […] with respect to the result only.” The third judge dissented, arguing that “under the spirit of the law, […] discrimination based upon […] sexual orienta-tion (or preference) and gender stereotype also state claims as they are encompassed by the term ‘sex’ in the Mis-souri Human Rights Act.” Pittman, 478 S.W.3d at 489 (Honorable Anthony Rex Gabbert, dissenting).

Judge Gabbert’s dissent regarding the MHRA is similar to the position the EEOC has taken in interpreting and enforcing Title VII. In a recent federal sector decision the EEOC determined that sexual orientation discrimination is discrimination because of sex. See Baldwin v. Dept. of Transportation, Appeal No. 0120133080 (July 15, 2015). In Baldwin, the EEOC stated that Title VII prohibits discrimination based on sexual orientation because:

(1) sexual orientation discrimination necessarily involves treating workers less favorably because of their sex because sexual orientation as a concept cannot be understood without reference to sex; (2) sexual orientation discrimination is rooted in non-compliance with sex stereotypes and gender norms, and employment deci-sions based in such stereotypes and norms have long been found to be prohibited sex discrimination under Title VII; and (3) sexual orientation discrimination punishes workers because of their close personal associa-tion with members of a particular sex, such as marital and other personal relationships.

On March 1, 2016, the EEOC announced that it filed two lawsuits alleging sex discrimination based upon sexual orientation; one against Scott Medical Health Center in the Western District of Pennsylvania (Case No. 2:16-cv-00225-CB), and the other against IFCO Systems in the District of Maryland (Case No. 1:16-cv-00595-RDB). These lawsuits are a first for the EEOC and demonstrate the EEOC’s commitment to the interpretation of Title VII dis-cussed in Baldwin. What’s next remains to be seen.

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Isaac Keppler is an associate at Colantuono Bjerg Guinn, LLC, where he practices employment law and business litigation . Isaac graduated from Western New England University School of Law in 2007 . Prior to joining Colantuono Bjerg Guinn in 2013, Isaac worked as a litigation attorney for a mid-sized civil litigation firm in Boise, Idaho . Isaac has also clerked for a state district court judge and worked as a research and writing attor-ney for the Kansas Supreme Court .


Visit the JCBA Career Center, where we’re bringing Johnson County’s legal professionals and top employers together. Recruit top talent, find legal jobs and get connected.

Supporting Legal Professionals. ADVANCING CAREERS.

Visit the JCBA Career Center today!www.jocobar.org/jobs

130 N. Cherry, Ste. 202Olathe, KS 66061

Johnson County Bar Association130 North Cherry, Ste. 202

Olathe, Kansas 66061(913) 780-5460

FAX: (913) 780-5480Website: www.jocobar.org

OFFICERS

President ~ Hon. Thomas M. SutherlandPresident-Elect ~ Katie McClaflinVice President ~ Stacey L. Janssen

Secretary/Treasurer ~ Christopher J. Lucas

BOARD OF DIRECTORS

Past PresidentHon. Christina Dunn Gyllenborg

Senior Lawyers Section PresidentHon. Stephen R. Tatum

Young Lawyers Section PresidentPeter C. Simonsen

10th Judicial District Court RepresentativeHon. Thomas Kelly Ryan

Elected Director ICarly F. Boothe

Elected Director IILaura L. McConwell

Elected Director IIITiffany A. McFarland

Appointed DirectorKevin J. Breer

Appointed DirectorMark A. Dupree, Sr.

Executive DirectorTracey DeMarea

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