Full registration form is inserted at Page 9 or you may register online at www.ksbar.org. THE OURNAL of the Kansas Bar Association JMay 2006 • Volume 75 • No. 5 ITEMS OF INTEREST REGULAR FEATURES 5 Enhancing our Image 4 President’s Message 9 A Nostalgic Touch of Humor 11 Young Lawyers Section News 5 Pro Bono Attorneys Needed 13 Law Students’ Corner 10 Just a bag of Wind or 16 Members in the News Very Special Music? 16 Dan’s Cartoon 5 Kansas Department of 17 Obituaries Revenue to Audit Lawyers 30 Appellate Decisions 35 Appellate Practice Reminders 42 Classifieds 6 Raising the Bar Honor Roll 43 CLE Docket Correction: The “2006 Outstanding Speakers Recognition” in the April issue of the Journal in- 7 Rebein Participates in ABA correctly listed the rank of John Randolph “Ran- 20 Muret Nominated to Bar Leadership Institute dy” Mettner Jr. as lieutenant general. His correct rank is lieutenant colonel. Represent District Four on Board of Governors 15 Welcome Spring 2006 Cover photo by Susan McKaskle, managing Admittees to the Kansas Bar editor. Capitol One building, Southcreek Office Park, Overland Park. 18 ‘Baffled?’ or Just ‘Board?’ Try Claim Construction After Phillips 20 2006 Legislature Nears end of Session See you in Overland Park! 21 A Message from Secretary Annual Meeting 22 The Fairness in Private of State Ron Thornburgh Construction Contract June 8-10 Act: Legislative Fairness 41 Kansas Association of Legal or Oxymoron? Assistants Seminar By Christopher F. Burger Our Mission: The Journal Board of Editors Michael T. Jilka Kansas City The Kansas Bar Association is dedicated to advancing the professionalism and legal Casey Law McPherson skills of lawyers, providing services to its members, serving the community through Assistant Executive Director: Hon. Steve Leben Olathe advocacy of public policy issues, encouraging public understanding of the law, and René Eichem Marta F. Linenberger Carbondale promoting the effective administration of our system of justice. Managing Editor: Susan McKaskle Michelle Reinert Mahieu Dodge City Hon. Tom Malone Topeka The Journal of the Kansas Bar Association is published monthly with combined issues for Terri Savely Bezek, Chair Topeka Michelle Masoner Kansas City July/August and November/December for a total of 10 issues a year. Periodical Postage Gregory L. Ash Lawrence Julene Miller Topeka Rates paid at Topeka, Kan., and at additional mailing offices. The Journal of the Kansas Anne L. Baker Topeka Brian J. Moline Topeka Bar Association (ISSN 0022-8486) is published by the Kansas Bar Association, 1200 Hon. Monti L. Belot Wichita Hon. Lawton R. Nuss Topeka S.W. Harrison, P.O. Box 1037, Topeka, KS 66601-1037; Phone: (785) 234-5696; Fax: Hon. Donald W. Bostwick Wichita Hon. James P. O’Hara Overland Park (785) 234-3813. Member subscription is $25 a year, which is included in annual dues. Boyd Byers Wichita Prof. John Peck Lawrence Hon. Nancy M. Caplinger Topeka Mary D. Prewitt Topeka Nonmember subscription rate is $45 a year. POSTMASTER: Send address changes to Tamara Lee Davis Dodge City Richard D. Ralls Kansas City The Journal of the Kansas Bar Association, P.O. Box 1037, Topeka, KS 66601-1037. Hon. Jerry Elliott Topeka Richard H. Seaton Manhattan The Kansas Bar Association and the members of the Board of Editors assume no Mary Feighny Topeka Marty M. Snyder Topeka responsibility for any opinion or statement of fact in the substantive legal articles J. Lyn Entrikin Goering Topeka Angela M. Stoller Lawrence published in The Journal of the Kansas Bar Association. Dan Gronniger Topeka Catherine A. Walter Topeka Connie Hamilton Topeka Jeffrey A. Wietharn Topeka For advertising information contact Suzanne Green at (800) 211-1344 or e-mail Mark D. Hinderks Overland Park Diane S. Worth Wichita [email protected]. Publication of advertisements is not to be deemed an endorsement Evan Ice Lawrence Martha Coffman, board liaison Topeka of any product or service advertised unless otherwise indicated. Terri Bezek, Board of Editors chairperson, [email protected] COPYRIGHT 2006 Kansas Bar Association, Topeka, Kan. Susan McKaskle, managing editor, [email protected] From the President Richard F. Hayse What Then Must We Do? ne of my favorite movies is “The Year of Living Dan- which also calls on law schools and bar associations to encour- gerously” which follows a young Mel Gibson and Si- age lawyers to undertake this service. gourney Weaver as they fall in love in the dangerous My guess is that everyone who reads these words is already Oprerevolutionary Indonesia of the ‘60s. They are brought to- doing a great deal — that we coach the soccer teams, teach gether by Linda Hunt, who portrays Billy Kwan, a scheming Sunday School, volunteer for community boards and give Anglo-Chinese news cameraman who aspires to be a puppet away a lot of free legal help. But there are 10,000 lawyers ad- master in control of the lives of those around him. (Hunt, mitted to practice law in Kansas, and the power of Greco’s idea playing a man, got the Academy Award.) is in the multiplier. If each of us follows Billy Kwan’s example From his multicultural background Billy puts up a blasé and does just one more thing within our power, however lim- front to the Westerners about the squalid conditions which ited, we’ve just taken 10,000 steps to making things better. I eventually lead to the ouster can’t prevent church burnings of Sukarno. But Billy is se- Through our service we ensure that our but I can help a child learn to cretly idealistic, financially read. I can’t stop famine in supporting a single mother individual idealism never disappears and the desert but I can deliver and her child who struggle we serve as a model for others who need a meals on wheels. I can’t alter for survival in the slums of Ja- the economics of oil but I can karta. Surrounded with over- little encouragement. teach personal finance to the whelming poverty and misery, disadvantaged. Billy quotes Tolstoy’s question: “What then must we do?” His The KBA has done much to facilitate public service by law- answer is to do something within his power, even if it isn’t yers and will be doing more. The Lawyer Referral Service pro- much in the big picture. vides a vehicle to connect willing lawyers with clients who Probably every one of us graduated from law school with qualify for pro bono or reduced fee services. We are prepar- our idealism pretty much intact: Worlds to conquer and plen- ing a comprehensive guide to the continuum of legal services ty of time to do it. As the years go by, the idealism gives way available to those who are unable to afford full rates. We are to much more prosaic pragmatism. There are mouths to feed, creating a system to establish contact between volunteer law- taxes to pay and laundry to do. Billy Kwan’s downfall comes yers and local nonprofit organizations which are seeking a when he sees his idealism tragically crushed by the death of lawyer to serve on their boards. We annually recognize lawyers his adoptive child to untreated disease. For most of us the ero- who perform outstanding pro bono service, or who demon- sion of idealism doesn’t come in a dramatic, mind-changing strate courage through professional achievement. event such as Billy experiences. Rather, it just gets gradually I challenge you to identify any other occupation or profes- displaced by more pressing concerns. sion which collectively volunteers as much as lawyers to mak- ABA President Mike Greco has undertaken to push against ing things better. Despite the never-ending supply of lawyer that tide by trying to attract lawyers to his signature project, jokes, the reality is that we provide leadership and personal the Renaissance of Idealism. President Greco’s challenge is to service across all phases of society and have done so through- rekindle the enormous power of the legal profession to make out this nation’s history. Through that service we ensure that things better. He wants us to contribute to the public good our individual idealism never disappears and we serve as a through more community service, in addition to exercising model for others who need a little encouragement. our professional responsibility to deliver pro bono legal ser- You and I can make President Greco’s Renaissance a reality vice. He wants legal providers and those who employ lawyers in our own lives by taking on just one more task for the benefit to adopt policies and practices that afford lawyers the time of those around us. Opportunities are everywhere and virtually and opportunity to engage in such service. The ABA House nothing else gives you more satisfaction or demonstrates better of Delegates has backed his initiative with a supportive policy your pride in being a member of this honorable profession. n Richard F. Hayse can be reached by e-mail at [email protected] or by phone at (785) 232-2662. 4 – MAY 2006 THE JOURNAL OF THE KANSAS BAR ASSOCIATION Enhancing our Image By H. David Starkey, Kansas Bar Foundation president eing a Kansas lawyer is a privilege and a responsibility. etched on some courthouse wall. It is part of our responsibility as As licensed professionals, we represent the interests of Kansas lawyers to help people understand it and achieve it. The our clients in very important matters. We are able to ex- preamble to the Kansas Rules of Professional Conduct says: Bert substantial influence in social and public policy concerns in our local communities. Honestly speaking, most lawyers seek As a member of a learned profession, a lawyer should and enjoy the rewards of success, the notoriety of battles won, cultivate knowledge of the law beyond its use for clients, and the personal satisfaction employ that knowledge in reform of the law, and work of a career choice.