Kris Kobach to rebid contract after canceling deal with law firm that donated to Democrats

Kansas officials are moving to rebid a legal contract after Attorney General Kris Kobach, a Republican, fired a law firm allegedly over its political donations to Democrats.

Kobach in March moved to terminated the contract with Florida-based Morgan & Morgan, which was assisting the state in investing and litigating alleged price gouging in the natural gas markets during the February 2021 winter storm.

"The attorney general determined that he would rather go with a different firm, and so we have parted ways with the previous firm that handing it and are handling it in-house presently," said Dan Burrows, the chief deputy attorney general. "But I think it's fair to say that we lack the in-house resources to handle litigation of this magnitude through the entire case. Right now, I think we are handling it just fine. … The early stages of litigation are relatively light."

But the state fired Morgan & Morgan while the investigation and litigation were ongoing, and Burrows said a new firm will need time to get up to speed.

"We feel like there's some additional investigation that needs to be done, so we're not even certain what additional claims the state of Kansas might have, whether there might be other cases that we want to bring," he said.

More: Why did Kris Kobach end contract with Florida law firm probing price gouging in Kansas?

Why did Kris Kobach fire Morgan & Morgan?

The contract ended last month. Morgan & Morgan founder John Morgan told The Topeka Capital-Journal the move was politically motivated.

"This is all about politics, and the people and taxpayers have suffered," he said in a statement. "You should not care what political party your surgeon is a member of. The same should apply to your legal representation. But politicians are often petty people who hurt their own constituents by playing games."

The Wall Street Journal editorial board praised Kobach the same day the contract termination notice was sent, criticizing Morgan & Morgan for donations to Democrats and for charging a contingency fee.

"One mystery of modern politics is why so many Republican-led states employ trial lawyers who file junk lawsuits and donate to their political opponents," the editorial board wrote.

Kobach told reporters Monday that he did have political considerations in mind, but they did not factor into the decision to cancel the contract.

"It is of interest that yeah this firm does have, you know, heavy leanings in the Democrat direction in terms of their own politics," he said. "But no, if they had been performing satisfactorily, then we would not have terminated."

Kobach said the primary reasons for terminating the contract were concerns with timeliness of work performed, communication issues and the use of subcontractors.

"The performance on the contract was not what we were hoping it would be," he said.

The contract allowed Morgan & Morgan to use subcontractors with the consent of the attorney general. It also had a termination for cause clause that could have been used for a variety of reasons, including "substandard quality or workmanship" and failure "to make progress so as to endanger performance."

But Kobach didn't terminate for cause, which would have required the state to give Morgan & Morgan at least 10 days to remedy the situation. Instead, he used the termination for convenience clause, which allowed the state to cancel the contract for any reason. No reason was provided in the termination notice.

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Could Kansas face a lawsuit over canceled contract?

Burrows shed little additional light on the contract termination during a meeting last week where he explained to the Legislative Budget Committee why the attorney general's office was pursuing a new request for proposals.

He was careful in what he said about Morgan & Morgan during the public meeting, indicating that Kobach's cancelation of the contract could result in a lawsuit by or a payment to the firm.

"The termination has not been amicable, and I don't want to prejudice the state's position in any litigation that may result from it," he said. "What I can say is the previous contract was a contingency contract, and so it was their earning of a fee was contingent on any future recovery in the actual litigation.

"The litigation is in its early steps. There has been no recovery. If there were to be a recovery, it might be appropriate to consider whether they have a claim on the fee. But presently, we haven't paid the firm anything or come to any sort of agreement to make them go away either."

Kobach later told reporters that "we absolutely intend to make sure that any final arrangement, once Kansas wins this case, is fair to both firms." He suggested that Morgan & Morgan could get a portion of the judgment based on its share of the hours invested into the case compared to a new contractor.

Jill Wolters, an assistant revisor of statutes, said that prior to the state entering into a contract for legal services where attorney fees are expected to exceed $1 million, there must first be a request for proposals that goes through the Legislative Budget Committee.

The committee may hold a public hearing — as they did Wednesday — and issue a report suggesting changes to the RFP. The committee adopted the RFP request upon the motion of Sen. J.R. Claeys, R-Salina, who ran Kobach's political campaign and now also works in the attorney general's office.

After the RFP process, an awarded contract is submitted to the committee, which may hold another hearing and issue a report.

Burrows said the attorney general's office is primarily focused on a firm's experience and capacity to do the work. Kansas is so far the first and only state to file any litigation tied to Winter Storm Uri, leaving the state without the option of piggybacking off the work of other states.

He said they are also open to various fee arrangements, explaining that the contingency fee in Morgan & Morgan's contract was "reasonable at the time" due to the unknowns, but now "we'd like to see other potential fee options."

Morgan & Morgan is also allowed to bid for the new contract.

"The previous firm was not terminated for cause; they are still free to bid under this RFP," Burrows said. "I think the goal here is just to get a relationship that is more satisfactory to the current administration."

Burrows said the attorney general's office has provided the Department of Administration with the names of four or five firms that may be interested in bidding, but the process is open to other firms nationally.

"We certainly don't have some, you know, predetermined idea of who would be the best," he said.

This article originally appeared on Topeka Capital-Journal: Kris Kobach seeks help from new law firm after firing Morgan & Morgan