WEST virginia Legislature
2016 regular session
Senate Bill 8
By Senators Gaunch, Karnes, Leonhardt, Trump and Blair
Referred to the Committee on the Judiciary.]
A BILL to amend and reenact §5-3-3 and §5-3-4 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §5-3-3a, all relating generally to appointment of attorneys to assist the Attorney General; establishing competitive bidding process for use of private attorneys on a contingency fee basis by Attorney General; requiring written determinations for Attorney General’s selection of private attorneys to represent state on a contingency fee basis; setting fees for contingency fee legal arrangements or contracts between private attorneys and Attorney General; establishing supervision requirements for private lawyers representing state on a contingency fee basis; requiring the posting of certain documents relating to Attorney General’s retention of private attorneys to represent state on a contingency fee basis; requiring Attorney General reports on certain legal causes and matters to the Governor, President of the Senate and Speaker of the House; outlining contents of those reports; updating and removing outdated provisions; and defining terms.
Be it enacted by the Legislature of West Virginia:
That §5-3-3 and §5-3-4 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §5-3-3a, all to read as follows:
ARTICLE 3. ATTORNEY GENERAL.
§5-3-3. Assistants to Attorney General.
The Attorney General may
appoint such deputy or assistant attorneys general as may be necessary to
properly perform the duties of his or her office. The total compensation of all
such deputies or assistants shall be within the limits of the amounts
appropriated by the Legislature for personal services. All deputy or assistant
attorneys general so appointed shall serve at the will and pleasure of the
Attorney General and shall perform such duties as
he the Attorney
General may require of them.
All laws or parts of laws inconsistent with the provisions hereof are hereby amended to be in harmony with the provisions of this section.
§5-3-3a. Competitive bidding required for private attorneys.
(a) The following terms, wherever used or referred to in this section, have the following meanings:
(1) "Deputy or assistant Attorney General" means an attorney employed by the state as a staff attorney in the Attorney General's office.
(2) "Private attorney" means any attorney who is neither an assistant Attorney General on the Attorney General's staff nor an employee of another state agency.
(3) "State" means the State of West Virginia, including state officers, departments, boards, commissions, divisions, bureaus, councils and units of organization, however designated, of the executive branch of state government and any of its agents.
(4) “Contingency fee legal arrangement or contract” means any legal fee arrangement that provides for a private attorney or special assistant Attorney General to be paid a percentage of any recovery associated with any claims brought by the private attorney or special assistant Attorney General on behalf of the state or to be paid through a court-approved award of attorney’s fees.
(b) The state may not enter into any contingency fee legal arrangement or contract with a private attorney unless the Attorney General, or his or her designee, makes a written determination prior to entering into such a contract that the legal representation is both cost-effective and in the best interest of the public. Any written determination shall include specific findings for each of the following factors:
(1) Whether sufficient and appropriate legal and financial resources exist within the Attorney General’s office to handle the matter;
(2) The time and labor required; the novelty, complexity and difficulty of the questions involved; and the skill requisite to perform the attorney services properly;
(3) The geographic area where the attorney services are to be provided, as well as any potential costs associated with providing legal services in that geographic area; and
(4) The amount of experience desired for the particular kind of legal services to be provided and the need for a private attorney’s experience with similar issues or cases.
(c) If the Attorney General, or his or her designee, makes the written determination described in subsection (b) of this section, the Attorney General shall request proposals from private attorneys to represent the state accordingly on the basis of a fee arrangement as set forth in subsection (h) of this section, unless the Attorney General, or his or her designee, makes a written determination that one of the following factors applies:
(1) An emergency situation exists that requires time-sensitive legal services that cannot be adequately provided by the Office of Attorney General and for which insufficient time exists to complete the customary competitive bidding process;
(2) An appointment, or the continuation of an appointment, is necessary to avoid disruption in pending legal matters by allowing previously appointed outside counsel to continue providing legal representation; or
(3) The legal services are to be provided on a pro bono basis, and therefore will not benefit from a competitive bidding process.
(d) Any requests for proposal shall be posted to the website of the office of the Attorney General. The time period under which the proposal is open should be clearly stated.
(e) When soliciting proposals from private attorneys to represent the state on the basis of a fee arrangement as set forth in subsection (h) of this section, the Attorney General, or his or her designee, shall consider the following factors when determining the most competitive proposal for legal services and make a written determination as to the application of these factors, prior to entering into any contract for outside legal services:
(1) Whether the private attorneys possess the requisite skills and expertise needed to handle the legal matters in question;
(2) Whether the private attorneys possess requisite staffing and support to handle the scope of the litigation or matter;
(3) Whether the private attorneys or any members of the private attorneys’ law firm have been subject to discipline by the West Virginia State Bar, or other entities, for unethical conduct;
(4) Whether the private attorneys have been peer rated and, if so, what peer ratings they have received, along with any other recognitions or awards for legal services;
(5) The estimated fees, costs and expenses of the private attorneys to perform the legal services requested;
(6) The willingness of the private attorneys to enter into alternative billing arrangements;
(7) Whether the private attorneys are in compliance with all applicable laws of the State of West Virginia;
(8) Any potential disqualifying conflicts of interest between the private attorneys and the state;
(9) Any relevant input from the state entity client, if applicable, regarding the needed legal services; and
(10) Any such other relevant factors as may be identified by the Attorney General or his or her designee.
(f) If, after soliciting proposals for legal services, the Attorney General, or his or her designee, determines that the proposals received are insufficient based on an application of the factors set forth in subsection (e) of this section, additional proposals may be solicited pursuant to subsections (b), (c) and (e) of this section.
(g) The state shall not enter into a contingency fee legal arrangement or contract as defined herein for private attorney services unless the following requirements are met throughout the contract period and any extensions thereof:
(1) The Attorney General, or the deputy or assistant Attorney General involved in the case, shall retain control over the course and conduct of the case;
(2) The Attorney General, or the deputy or assistant Attorney General with supervisory authority, is personally involved in overseeing the litigation;
(3) The Attorney General, or the deputy or assistant Attorney General involved in the case, retains veto power over any decisions made by any appointed private attorneys; and
(4) Decisions regarding settlement of the case are reserved exclusively to the discretion of the state or other client entity. An appropriate representative of the Attorney General’s office shall attend settlement conferences whenever possible.
(h) The state may not enter into any fee arrangement that provides for the private attorney to receive an aggregate fee in excess of:
(1) Twenty five percent of the first $10 million recovered; plus
(2) Twenty percent of any portion of the recovery between $10 million and $15 million; plus
(3) Fifteen percent of any portion of the recovery between $15 million and $20 million; plus
(4) Ten percent of any portion of the recovery between $20 million and $25 million; plus
(5) Five percent of any portion of the recovery exceeding $25 million.
In no event shall the aggregate fee for any legal matter exceed $50 million for any matters arising from a single event or occurrence, exclusive of reasonable costs and expenses, and irrespective of the number of lawsuits filed or the number of private attorneys retained to achieve the recovery. Any legal fees shall not be based on penalties or fines awarded or any amounts attributable to penalties or fines.
To the extent that any private attorneys are to be paid through a court-approved award of attorney’s fees, their appointment to represent the state is contingent upon the acceptance of the fee limitations set forth herein. To the extent that any award of attorney’s fees is subject to judicial discretion, the office of the Attorney General shall request that the private attorneys performing work for the state are paid in accordance with the terms outlined above.
(i) The Attorney General shall develop a standard addendum to every contract for private attorney services that shall be used in all cases, describing in detail what is expected of both the contracted private attorney and the Attorney General’s office, including, without limitation, the requirements listed in subsection (h) of this section.
(j) Subject to the provisions of subsection (l) of this section, the Attorney General's written determination to enter into any legal arrangement or contract with a private attorney shall be posted on the Attorney General’s website for public inspection within fifteen business days after the selection of a private attorney and shall remain posted on the website for the duration of the contract for legal services, including any extensions or amendments thereto. Any and all written determinations made pursuant to subsection (b) or (c) of this section shall also be posted on the Attorney General’s website for public inspection within fifteen business days after the issuance of the written determination. Any payment of fees as set forth in subsection (h) of this section shall be posted on the Attorney General’s website within thirty calendar days after the payment of such fees to the private attorney and shall remain posted on the website for at least three hundred sixty-five calendar days thereafter.
(k) Any private attorney under contract to provide services to the state shall, from the inception of the contract until at least four years after the contract expires or is terminated, maintain detailed current records, including documentation of all expenses, disbursements, charges, credits, underlying receipts and invoices, and other financial transactions that concern the provision of such legal services. In conjunction with the Attorney General’s office, the private attorney shall make all such records that are not covered by the attorney-client privilege or otherwise confidential in nature available for inspection and copying upon request in accordance with the West Virginia Freedom of Information Act, sections one through seven, inclusive, article one, chapter twenty-nine-b of this code. In addition, the private attorney shall maintain detailed contemporaneous time records for the attorneys, other professionals and paraprofessionals working on the matter for a period of at least four years and shall promptly provide these records to the Attorney General upon request.
(l) The Attorney General retains the right to temporarily waive the disclosure requirements set forth in subsection (j) of this section upon making a written determination that:
(1) A waiver is necessary to protect attorney-client or privileged information; or
(2) Immediate disclosure of the existence of an arrangement or contract with a private attorney, or any other sensitive information, could compromise the initiation, handling or conclusion of any investigation or case matter handled by the office of Attorney General.
Once any risks to the attorney-client privilege or confidential work product are no longer present, the office of Attorney General shall make any and all suspended disclosures as soon as possible and all subsequent disclosures in accordance with the time frame and manner set forth by subsection (j) of this section.
(m) If the Attorney General’s office chooses to not be involved in a legal matter as a result of a conflict of interest, and thus cannot implement in good faith the provisions of this section as a result of the conflict, then the process set forth herein shall be implemented by the client state entity needing representation, with the assistance of the Department of Administration if necessary.
(n) Nothing in this section expands the authority of any state agency or state agent to enter into contracts nor shall it be deemed to change any existing law that authorizes a state agency or state agent to employ its own counsel or enter into contracts for legal services.
§5-3-4. Annual report to Governor, President of the Senate and Speaker of the House.
(a) The Attorney General shall annually, on or before
November 1, deliver to the Governor, President of the Senate and Speaker of the
House a report
(1) The state and condition of the several causes, in which the state is a party, pending in courts mentioned in section two of this article.
(2) The use of any fee arrangements as provided in subsection (h), section three-a of this article with private attorneys in the preceding year. At a minimum, the report shall:
(A) Identify all new fee arrangements entered into during the year and all previously executed fee arrangements that remain current during any part of the year and for each contract describe:
(i) The name of the private attorney with whom the state has contracted, including the name of the attorney's law firm;
(ii) The nature and status of the legal matter;
(iii) The name of the parties to the legal matter;
(iv) The amount of the recovery; and
(v) The amount of any legal fees paid.
(B) Include copies of any written determinations made pursuant to section three-a of this article during the year.
(b) The Attorney General’s annual report shall be posted on the Attorney General’s website within thirty days of submitting the report to the Governor, President of the Senate and Speaker of the House, and shall remain posted on the website for at least two years thereafter.
(c) Nothing in this section shall be considered to require the Attorney General to report or disclose any information protected by the attorney-client or other privilege.
NOTE: The purpose of this bill is to clarify the powers of the Attorney General to enter into contingency fee legal arrangements or contracts with attorneys outside the Attorney General's office.
Strike-throughs indicate language that would be stricken from a heading or the present law, and underscoring indicates new language that would be added.