AG Defends Outside Counsel Decision

Ex-Dean at KU Law will Assist in Defense of New Abortion Regs

By Jan Biles

Kansas Attorney General Derek Schmidt said Friday the state’s top appellate lawyer and Wichita-based law firm Foulston Siefkin will round out the legal team defending the state against three federal lawsuits challenging new Kansas laws related to licensing abortion clinics and distributing health care funding.

The attorney general’s office will coordinate the overall defense through the deputy attorney general for civil litigation, he said.

Schmidt made the announcement after it was revealed he had hired Foulston Siefkin, a firm that also represents billionaire brothers David and Charles Koch, to represent the state in a lawsuit filed by Planned Parenthood. The Koch brothers have made significant donations to the Republican Party.

Schmidt issued a statement responding to recent criticism of the decision that said previous attorneys general hired outside lawyers to represent the state in lawsuits over school finance and water issues. Those topics, he said, were resource intensive and warranted outside assistance.

“The attorney general’s office has far broader responsibilities than abortion-related litigation,” said Schmidt, a Republican in his first term. “This is a situation where prudent case management requires the assistance of outside counsel to supplement the state’s resources.”

Schmidt said the state is facing three federal lawsuits brought by a dozen out-of-state lawyers and two Kansas law firms in the past three weeks.

“These plaintiffs have launched a massive legal assault on the authority of Kansas to set its own laws and priorities,” he said in a statement. “As is our duty, our office will provide for a zealous defense of the state’s duly enacted laws.”

Schmidt said the state’s legal defense against two federal lawsuits challenging the state’s new abortion clinic licensing law will be led by Kansas Solicitor General Steve McAllister, a former dean of The University of Kansas Law School and former U.S. Supreme Court clerk who has represented the state in federal litigation in the past.

Foulston Siefkin, the largest law firm in Kansas, has been retained to represent the state against the lawsuit filed in June by Planned Parenthood over a budget provision that blocks $334,000 from going to the health provider.

Schmidt said Foulston Siefkin has represented “thousands of diverse clients,” as well as the state under both Democrat and Republican attorneys general.

The state attorney general’s office said outside counsel has been retained in accordance with Kansas laws and will be paid through the Kansas Tort Claims Fund, which is administered by the attorney general.

Foulston-Siefkin’s rates for para-legal services are $115 per hour and rates for litigation partners range up to $300 hourly.

Democrats have said the hiring of private lawyers instead of using the state’s attorneys is a waste of tax dollars.

“At a time when the Brownback administration has enacted deep cuts in education, social services and other important areas of the budget, the attorney general should be using his existing staff to defend the state,” Senate Democratic leader Anthony Hensley, of Topeka, said in a news release Friday.

Hensley said he found it disturbing the attorney general was “awarding a state contract to political cronies on a no-bid basis.” He said Harvey Sorensen, a partner in Foulston Siefkin, was co-chair of Schmidt’s election campaign.

Schmidt said the state attorney general’s office has 10 staff attorneys who defend the state and its officials against a wide range of civil lawsuits. Those attorneys currently are handling more than 600 case files.

He said it would be unwise to pull those in-house attorneys off other cases and redirect their efforts toward the three new lawsuits.

To date, Schmidt said, at least 16 lawyers from nine different legal organizations have entered appearances in Kansas in support of the plaintiffs suing Kansas.

He also said outside counsel has been used in the past by Democrat and Republican attorneys general to assist when additional resources or expertise is needed. He pointed to ongoing school finance litigation and interstate water litigation as other current examples of major cases where the state is using outside counsel.

But Hensley took exception to the attorney general’s statement.

“I have no idea why Attorney General Derek Schmidt is comparing his hiring of the law firm Foulston Siefkin to the process used by the previous attorney general to hire outside counsel in other litigation,” he said. “The law firm hired to defend the state in the school finance lawsuit went through an extensive competitive bid process designed to guarantee that Kansas taxpayers’ money was used appropriately.”

The Associated Press contributed to this report.