Lex Mundi Global Attorney-Client Privilege Guide |
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USA, Kansas |
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(United States)
Firm
Foulston Siefkin LLP
Contributors
Michael Norton |
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| Is the ACP recognized in your jurisdiction? | Yes |
| If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure... | N/A |
| Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product? | No Yes, under very limited circumstances. See, e.g., K.R.P.C. 3.8(e) (Special Responsibilities of Prosecutor). |
| In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.) | Kansas follows the Upjohn approach. |
| Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications? | Technically, the test/burden is the same for in-house counsel as for outside counsel, although as a practical matter there can often be tougher questions with in-house counsel, such as whether they are providing business or legal advice or whether the communication is made in a context that causes it not to be privileged (e.g., too many “others” present). |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | N/A |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | N/A |
| Is the common interest doctrine recognized in your jurisdiction? | Likely, but it is limited. |
| How is the doctrine articulated in your jurisdiction? | Though the Kansas appellate courts have not squarely addressed the common interest doctrine, the Federal District Court for the District of Kansas has addressed the doctrine. In United States Fire Ins. Co. v. Bunge N. Am., Inc., No. 05-2192-JWL-DJW, 2006 WL 3715927, at *1 (D. Kan. Dec. 12, 2006), the District of Kansas set out the common interest doctrine as it likely applies in Kansas:, The common interest doctrine can only exist where there is an applicable underlying privilege. The common interest doctrine is not a separate privilege, but an exception to waiver of the attorney-client privilege. The common interest doctrine thus acts as an exception to the general waiver rule by facilitating cooperative efforts among parties who share common interests. For the common interest doctrine to attach, ‘most courts . . . insist that the two parties have in common an interest in securing legal advice related to the same matter – and that the communications be made to advance their shared interest in securing legal advice on that common matter.’ ‘The key consideration is that the nature of the interest be identical, not similar, and be legal, not solely commercial.’ Id. (citations omitted). |
| Must a common interest agreement be in writing? | No |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | It is neither expressly prohibited nor permitted. There are no specific professional rules directly addressing litigation funding, but any funding arrangement would need to comply with existing rules, such as Rule 1.6 (confidentiality), Rule 1.7 (conflicts of interest), Rule 1.8 (payment of fees by a third party; acquiring a proprietary interest in litigation), and Rule 5.4 (professional independence). |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | No |
| Is the crime-fraud exception recognized in your jurisdiction? | Yes |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | K.S.A. 60-426, K.R.P.C. 1.6, and State v. Boatwright, 54 Kan.App.2d 433 (2017). |
| Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?) | Yes K.S.A. 60-226(b)(4). |
| What are the elements of the protection in your jurisdiction? | “Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative, including the other party's attorney, consultant, surety, indemnitor, insurer or agent.” K.S.A. 60-226(b)(4). If discovery is ordered, the court “must protect against disclosure of the mental impressions, conclusions, opinions or legal theories of a party's attorney or other representative concerning the litigation.” Id. |
| Does your jurisdiction recognize an accountant-client privilege? | Yes. K.S.A. 1-401. |
| Does your jurisdiction recognize a mediation privilege? | Yes. K.S.A. 5-512 and K.S.A. 60-452a. |
| Does your jurisdiction recognize a settlement negotiation privilege? | Yes. K.S.A. 60-452. |
Lex Mundi Global Attorney-Client Privilege Guide
USA, Kansas
(United States) Firm Foulston Siefkin LLPContributors Michael Norton
Updated 23 Mar 2020Yes
N/A
No
Yes, under very limited circumstances. See, e.g., K.R.P.C. 3.8(e) (Special Responsibilities of Prosecutor).
Kansas follows the Upjohn approach.
Technically, the test/burden is the same for in-house counsel as for outside counsel, although as a practical matter there can often be tougher questions with in-house counsel, such as whether they are providing business or legal advice or whether the communication is made in a context that causes it not to be privileged (e.g., too many “others” present).
N/A
N/A
Likely, but it is limited.
Though the Kansas appellate courts have not squarely addressed the common interest doctrine, the Federal District Court for the District of Kansas has addressed the doctrine. In United States Fire Ins. Co. v. Bunge N. Am., Inc., No. 05-2192-JWL-DJW, 2006 WL 3715927, at *1 (D. Kan. Dec. 12, 2006), the District of Kansas set out the common interest doctrine as it likely applies in Kansas:,
The common interest doctrine can only exist where there is an applicable underlying privilege. The common interest doctrine is not a separate privilege, but an exception to waiver of the attorney-client privilege. The common interest doctrine thus acts as an exception to the general waiver rule by facilitating cooperative efforts among parties who share common interests. For the common interest doctrine to attach, ‘most courts . . . insist that the two parties have in common an interest in securing legal advice related to the same matter – and that the communications be made to advance their shared interest in securing legal advice on that common matter.’ ‘The key consideration is that the nature of the interest be identical, not similar, and be legal, not solely commercial.’
Id. (citations omitted).
No
It is neither expressly prohibited nor permitted. There are no specific professional rules directly addressing litigation funding, but any funding arrangement would need to comply with existing rules, such as Rule 1.6 (confidentiality), Rule 1.7 (conflicts of interest), Rule 1.8 (payment of fees by a third party; acquiring a proprietary interest in litigation), and Rule 5.4 (professional independence).
No
Yes
K.S.A. 60-426, K.R.P.C. 1.6, and State v. Boatwright, 54 Kan.App.2d 433 (2017).
Yes
K.S.A. 60-226(b)(4).
“Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative, including the other party's attorney, consultant, surety, indemnitor, insurer or agent.” K.S.A. 60-226(b)(4). If discovery is ordered, the court “must protect against disclosure of the mental impressions, conclusions, opinions or legal theories of a party's attorney or other representative concerning the litigation.” Id.
Yes. K.S.A. 1-401.
Yes. K.S.A. 5-512 and K.S.A. 60-452a.
Yes. K.S.A. 60-452.