Super Lawyers®, which recognizes the top attorneys nationwide across a broad spectrum of practice areas and firm sizes, uses a patented selection process based on independent research and peer nominations. Attorneys who are selected have demonstrated a combination of professional achievement, experience, and peer recognition. The list includes both seasoned legal professionals and the Rising Stars of the industry—those who have shown exceptional promise early in their careers.

Scott M. Hill, HFH Manager Partner commented, "We are extremely proud of our attorneys for their continued recognition by Super Lawyers® and the Rising Stars list. This achievement reflects not only the individual talent and dedication of our team, but also our firm’s unwavering commitment to delivering outstanding legal services to our clients. The accolades these attorneys have earned speak to the trust and respect they have garnered within the legal community, and we are excited to see their continued success. At Hite Fanning & Honeyman, excellence is at the core of everything we do, and these honors further reinforce our dedication to providing exceptional counsel and results for our clients."

Super Lawyers Recognition:

The following Hite Fanning & Honeyman attorneys have been named to the 2024 Super Lawyers® list:

• F. James Robinson, Jr. – Business Litigation
• Linda S. Parks – Business/Corporate Law
• Brad LaForge – Civil Litigation: Defense
• Gaye B. Tibbets – Employment & Labor Law
• Jon E. Newman – Employment & Labor Law
• Don D. Gribble II – Personal Injury; Medical Malpractice: Defense
• Jerry D. Hawkins –  Civil Litigation
• Stephen H. Netherton – Medical Malpractice
• Randy J. Troutt -  Medical Malpractice

Rising Stars Recognition:

Additionally, Mackenzie Baxter has been recognized as a 2024 Rising Star in the field of Civil Litigation: Defense. This honor highlights Mackenzie’s emerging reputation as a promising young lawyer, based on her outstanding work in litigation and her professional growth in the legal community.

Hite, Fanning & Honeyman LLP has earned recognition across several categories in the 2025 edition of Best Law Firms®.  This prestigious acknowledgment is based entirely on peer review, reflecting the consensus opinion of leading lawyers regarding the professional abilities of their colleagues within the same geographical and legal practice areas.

Hite, Fanning & Honeyman has earned a Tier 1 metropolitan firm ranking in these practice areas: 

• Bet-the-Company Litigation
• Business Organizations (including LLCs and Partnerships)
• Commercial Litigation
• Commercial Transactions / UCC Law
• Employment Law - Individuals
• Employment Law - Management
• Litigation - Banking and Finance
• Workers' Compensation Law – Employers

Additionally, the firm has received a Second-Tier metropolitan ranking in these practice areas: 

Banking and Finance Law

• Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law
• Insurance Law
• Litigation - Bankruptcy
• Litigation - Labor and Employment
• Medical Malpractice Law – Defendants

Finally, Hite, Fanning & Honeyman has been named a Tier 3 metropolitan firm in these practice areas: 

• Closely Held Companies and Family Businesses Law
• Real Estate Law

We are pleased to announce that Kelly Rundell has recently joined the Board of Directors of the Wichita Arts Council. The Arts Council is committed to strengthening art venues and promoting cultural arts throughout Wichita. Founded in 1966 as The Wichita Fine Arts Council, its mission has always been to support and enhance accessibility to the arts within our community. This includes encouraging the acquisition, appreciation, and access to the diverse fine arts in our region, advocating for the arts, demonstrating leadership in shaping public policy, and educating and informing the community about the arts, including their business aspects. Kelly is actively involved in the local arts scene and has showcased her work at numerous exhibitions in the area.

Promoting Public Trust and Confidence in Courts Vital to Our Future

By Forrest James “Jim” Robinson Jr.

We continue to see a trend of eroding public trust and confidence in courts that should alarm us all. Courts exist to uphold the rule of law. Properly functioning courts depend on the public’s trust and confidence. Society’s rules and norms are largely voluntary. We expect people will comply, not just because of possible penalties for non-compliance, but also because people perceive courts to be fair and impartial.

Surveys tell us that eroding public trust and confidence is undermining courts’ foundation. 

Each year, the National Center for State Courts conducts a national survey on how the public perceives courts. The center’s 2022 State of the State Courts survey in late October 2022 found the public’s confidence in state courts declined from 76% in 2018, to 64% in 2021, and to 60% in 2022. Similarly, the public’s confidence in the U.S. Supreme Court declined from 73% in 2012, to 63% in 2021, to 53% in 2022. 

Other surveys produce consistent findings. Results from a September 2022 Pew Research Center survey found the public is almost evenly split in its views of the Supreme Court: 48% held a favorable view of the court while 49% held an unfavorable view. A June 2022 Gallup poll found the public’s confidence in the Supreme Court was 25%, down from 36% in 2021 and five points lower than the previous low recorded in 2014. 

A 2022 Annenberg Public Policy Center survey found that only 40% of Americans believe the Supreme Court justices “set aside their personal and political views and make rulings based on the Constitution, the law, and the facts of the case,” down 19 points from 2021. A 2021 Annenberg survey found that 34% of Americans would consider abolishing the Supreme Court if it issued a decision that most Americans disagreed with, up from 20% in 2019.

The NCSC’s 2022 survey provides a quick snapshot of an eroding respect for the judiciary, but it does not specifically identify the causes. Even so, the Center’s polling firm noted the Supreme Court’s recent abortion decision and the sensed politicization of the Court were likely driving down the numbers.

The center’s findings show that liberals and moderates who once held the percentages up are now dragging them down. In 2017, there was almost no difference in respondents’ views of the Supreme Court based on ideology. Since then, confidence in the Supreme Court has fallen three points among conservatives, 25 points among moderates, and 45 points among liberals. The survey found similar, but smaller, trends in views of state courts.

As for race, confidence in the Supreme Court dropped nine points among white voters and 19 points among Black voters. Confidence in state courts declined two points among white voters and seven points among Black voters. 

The largest shift in public confidence is due to racial, gender, and socio-economic bias. Responding to a question about whether state courts were “fair and impartial,” in 2021 42% said that state courts were not doing well, and that increased to 49% in 2022. 

Equally troubling, on whether courts deliver “equal justice for all,” in 2014 62% said the courts were doing well or very well while 35% said the opposite. In 2022, 43% said the courts were doing well or very well, while 49% said the opposite. On this measure, the gulf between white respondents and people of color is wide. In 2022, 46% of white respondents said courts are doing well or very well while just 38% of Hispanic respondents and 30% of Black respondents said the same.

The survey revealed a new low on the question of whether courts were unbiased in their decisions. In 2019, the survey showed a net 11-point positive agreement with the statement, but that dropped to a net 3-point disagreement in 2022.

On a positive note, the 2022 survey shows growing confidence in remote court appearances. Also, strong majorities believe the judicial system does a good job of holding judges accountable. 

Now, more than ever, we must champion civics education about the importance of the rule of law and the role of courts. We must disarm organized disinformation attacks. The public needs to understand that state courts are far removed from the Supreme Court battles that make national headlines. As the NCSC’s polling firm notes, we must “emphasize the ability of state courts to better reflect the values and customs of the communities they serve and the historic preference of the country’s founders for state constitutions and state courts as the first line of defense for our rights and liberties.”

With so much work ahead, inaction is dangerous, and complacency allows the slide in trust and confidence to continue.

Forrest James “Jim” Robinson, is a senior partner at Hite, Fanning & Honeyman LLP, Wichita. He engages in a broad litigation and counseling practice spanning trial and appellate courts at the state and federal levels. He has been inducted into the D.C.-based National Center for State Courts’ Warren E. Burger Society, which honors persons who have made an extraordinary commitment to the administration of justice. In 2018, he was appointed by the Kansas Supreme Court to the Kansas Judicial Council.

 National Center for State Courts, State of the State Courts // 2022 Poll, https://www.ncsc.org/consulting-and-research/areas-of-expertise/court-leadership/state-of-the-state-courts.

 Pew Research Center, Positive Views of Supreme Court Decline Sharply Following Abortion Ruling, https://www.pewresearch.org/politics/2022/09/01/positive-views-of-supreme-court-decline-sharply-following-abortion-ruling/.

 Gallup, Confidence in U.S. Supreme Court Sinks to Historic Low, https://news.gallup.com/poll/394103/confidence-supreme-court-sinks-historic-low.aspx.

 Annenberg Public Policy Center, University of Pennsylvania, Over Half of Americans Disapprove of Supreme Court as Trust Plummets, https://www.asc.upenn.edu/news-events/news/over-half-americans-disapprove-supreme-court-trust-plummets.

 Annenberg Public Policy Center, University of Pennsylvania, 1 in 3 Americans Say They Might Consider Abolishing or Limiting  Supreme Court, https://www.annenbergpublicpolicycenter.org/1-in-3-americans-say-they-might-consider-abolishing-or-limiting-supreme-court/.

This article was originally published in the Kansas Bar Journal, January/February 2023, Vol. 92, No. 1, and is posted with the permission of the Kansas Bar Association.

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by F. James Robinson

Not every company’s communication with its in-house counsel is privileged. Only confidential communications which involve the requesting or giving of legal advice are privileged. Dartez v. Peters, No. 15-3255-EFM-GEB,2019 U.S. Dist. LEXIS 123178 *43, 2019 WL 3318185 (D. Kan. July 24, 2019). There must be a clear connection “between ‘the subject of the communication and the rendering of legal advice’ for the attorney-client privilege to shield the communication from disclosure.” Id. Further, “legal advice must predominate for the communication to be protected. The privilege does not apply where the legal advice is merely incidental to business advice.” Id. 

There is no presumption “that a company’s communications with counsel are privileged.” EEOC v. BDO USA, L.L.P., 856 F.3d 356 (5th Cir. 2017), opinion withdrawn and superseded, 876 F.3d 690, 695-97 (5th Cir. 2017). The party asserting the attorney-client privilege and work-product protection, bears the burden to show that either the privilege or the protection, or both, apply. Dartez 2019 U.S. Dist. LEXIS 123178 *43. 

For the attorney-client privilege to apply, Kansas courts require a “clear showing” that the attorney was acting in his or her professional legal capacity. Id. This starts with a “detailed and specific” showing in the privilege log. Id. at **43-44. But the mere conclusory assertion of an attorney-client privilege in the privilege log, “without more information, is insufficient.” Id. at *49. The privilege’s proponent must provide “sufficient information to enable the court to determine whether each element’ of the asserted privilege is satisfied.” Id. at 45. This burden can be met “only by an evidentiary showing based on competent evidence and cannot be discharged by mere conclusory assertions or blanket claims of privilege.” Id. at *44. One court put the same notion this way: “[c]alling the lawyer’s advice as ‘legal’ or ‘business advice’ does not help in reaching a conclusion; it is the conclusion.” United States v. Chen, 99 F.3d 1495, 1502 (9th Cir. 1996).

In federal court, work product protection for the company’s investigation materials depends on whether “(1) the materials sought to be protected are documents or tangible things; (2) they were prepared in anticipation of litigation or for trial; and (3) they were prepared by or for a party or a representative of that party.” Fed. R. Civ. P. 26(b)(3). 

Company materials prepared in the ordinary course of business or investigative work are not protected unless they were done under the supervision of an attorney in preparation “for the real and imminent threat of litigation or trial.” Kannaday v. Ball, 292 F.R.D. 640, 648 (D. Kan. 2013). That means there must be a real and substantial probability that litigation will occur at the time the materials were prepared. Id. Also, courts look “to the primary motivating purpose behind the creation of the document to determine whether it constitutes work product. Materials assembled in the ordinary course of business or for other non-litigation purposes are not protected by the work-product doctrine.” Id.

In Dartez, a police brutality case, the plaintiff had issued a records subpoena to the Kansas Highway Patrol for an internal investigation of the Patrol’s Special Response Team. The Patrol responded and logged a 98-page report written by the Patrol’s outside counsel for the Patrol’s Chief Legal Counsel, asserting it was done in anticipation of litigation. Dartez, at **37-38. After an in camera review the court decided the report’s main purpose was to evaluate the Special Response Team’s “operations to make recommendations for improvement and to ensure compliance with current law enforcement practice.” Id. at **49-52.  The court found one area in the report that “might come close to being legal advice.” Nonetheless, the court decided it was “incidental to the overall business purpose of the Report.” Id. at *50.

As for whether the report was protected by the work product doctrine, the court noted the Patrol failed to provide any details about anticipated litigation. The court decided, “there is no way to know whether the threat of litigation was ‘real’ and ‘imminent’ at the time the document was prepared.” Id. at *47. The court ordered that the report be produced to the plaintiff.

An adversary’s threats to sue can support a work product claim, but that is not always so. In Lawson v. Spirit Aerosystems, Inc., No. 6:18-cv-01100-EFM-ADM, 2019 U.S. Dist. LEXIS 176497 (D. Kan. Oct. 8, 2019), the court decided that “[w]here parties continue to resolve disagreements amicably, litigation is ‘not a substantial and significant threat.’”  2019 U.S. Dist. LEXIS 176497 *22. 

In sum, even when a company is negotiating to resolve a dispute amicably, to ensure that the attorney-client privilege and work product protection applies the company should internally document that its in-house counsel is conducting an investigation in anticipation of litigation and for the purposes of providing legal advice to the company.  If the in-house counsel is providing business advice it should be documented separately from the attorney’s legal advice. Putting business advice and legal advice in the same document risks that a redacted version will be produced in litigation during discovery.

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by F. James Robinson

On June 14, 2019, the Kansas Supreme Court in Hilburn v. Enerpipe Ltd (No. 112,765) struck down K.S.A. 60-19a02, which capped non-economic damages in personal injury actions. 

Hilburn was an automobile negligence case. The jury awarded the injured plaintiff $335,000, comprising $33,490.86 in economic damages for medical expenses and $301,509.14 in non-economic “pain and suffering” damages. The trial court, applying the K.S.A. 60-19a02 cap reduced the non-economic damages award to $250,000. [Note: In 2014, the Legislature increased the cap to $325,000 and allowed for an increase to $350,000 after July 1, 2022.]

A divided Court held that the statutory cap violates the “right to trial by jury” in Section 5 of the Kansas Bill of Rights by intruding “upon the jury’s determination of the compensation owed to redress her injury.” The Court rejected its own quid pro quo test in Miller v. Johnson 295 Kan. 636 (2012) for deciding the constitutionality of a statutory non-economic damages cap.  

The Hilburn decision creates uncertainty about the future of other statutory damage caps. Miller was a medical negligence case. Although the Hilburn Court rejected the Miller Court’s rationale, the Hilburn Court did not decide the constitutionality of the cap in a medical negligence case. Historically, Kansas has considered statutory caps for medical negligence separately from those for other personal injury actions. However, the plaintiff’s bar argues that since 1988, Kansas has not statutorily differentiated between the caps.

Given this uncertainty, health care providers may experience increasing medical liability insurance premiums. Cases are now working their ways through courts that will decide whether the Hilburn holding is applied in medical negligence cases. 

On February 13, 2020, the Kansas House Committee on Judiciary introduced House Bill No. 2673 that would fast track cases. If passed, the Kansas Supreme Court would have original jurisdiction to decide “the construction and validity of K.S.A. 60-19a02, and amendments thereto, or any other law that creates a limitation in a medical malpractice liability action on a claim for noneconomic loss, following the decision in the case of Hilburn v. Enerpipe Ltd., No. 112,765, June 14, 2019.” The bill is assigned to the House Appropriations Committee.

Also, the Legislature has studied the possibility of amending the Kansas Constitution to reject the Hilburn holding.  To date no resolution has been introduced for such an amendment.