Private Attorney General Sunshine/Attorney General Sunshine

Problem

Since the landmark recoupment lawsuits against the tobacco industry, state attorneys general have sought to recover costs from other industries, including firearms and pharmaceuticals, by partnering with the personal injury bar to sue whole industries. The growing trend of “regulation through litigation” presents more opportunities for government retention of personal injury lawyers on a contingent fee basis, and more opportunities for abuse.

ATRA's Position:

ATRA supports “sunshine” legislation that requires legislative approval of most large contingent fee contacts between government and personal injury lawyers, requires personal injury lawyers to keep track of their time spent on government cases, and reasserts the legislature’s oversight of “regulation through litigation.”


Opposition Opinion:

The personal injury bar’s opposition of “sunshine” legislation governing government retention of personal injury lawyers protects the multi-million-dollar contingent fees that the personal injury bar hopes to recover from future “regulation through litigation” partnerships with government.

State Government Accountability Reform: H.B. 104 (2008-1st Extraordinary Session)

West Virginia|2008

Requires the Attorney General to notify the Governor and Legislature

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Requires the Attorney General to notify the Governor and Legislature when filing a lawsuit and when entering into settlement negotiations.


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Unchallenged

Transparency in Private Attorney Contracting: A.B. 27 (2013)

Wisconsin|2013

Governs the practice of government hiring private, outside plaintiff attorneys

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Governs the practice of government hiring private, outside plaintiff attorneys on a contingency fee basis.


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Unchallenged

Transparency in Private Attorney Contracting: S.B. 648 (2014)

North Carolina|2014

Ensures that should the state award contingency fee contracts that

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Ensures that should the state award contingency fee contracts that they are awarded openly and transparently and that the state would receive maximum practicable amount of any settlement or award.  The bill places a tiered limit on the contingency fees that may be paid to outside council.


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Unchallenged

Transparency in Private Attorney Contracts

Louisiana|2014

This bill codifies the Louisiana Supreme Court decision in Meredith

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This bill codifies the Louisiana Supreme Court decision in Meredith v. Ieyoub.  It says the state cannot compensate attorneys on a contingency fee basis, absent express statutory authority.  The legislation, which is prospective only, prohibits the attorney general, state agencies and boards and commissions from entering into contingency fee contracts without express statutory authority.  It also provides a transparent process for the use of outside counsel contracts by the state.


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Unchallenged

Transparency in Private Attorney Contracts (2015)

Utah|2015

Enacts provisions relating to contingent fee contracts between the attorney

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Enacts provisions relating to contingent fee contracts between the attorney general and private attorneys.  Places tiered limits on the amount of contingency fees a private attorney can receive.


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Unchallenged

Transparency in Private Attorney Contracts: S.B. 38 (2015)

Ohio|2015

Provides for transparency in contracts between the state and private

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Provides for transparency in contracts between the state and private attorneys when contracting on a contingency fee basis. Contains tiered limits on the aggregate contingency fees that the private attorneys are allowed to receive from the state.


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Unchallenged

Transparency in Private Attorney Contracts: S.B. 244 (2015)

Nevada|2015

Establishes transparency requirements governing a contingent fee contract for legal

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Establishes transparency requirements governing a contingent fee contract for legal services provided to the State of Nevada or an officer, agency or employee of the State.


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Unchallenged

Transparency in Private Attorney Contracts: S.B. 204 (2015)

Arkansas|2015

Regulates state contingency fee contracts with private attorneys, and requires

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Regulates state contingency fee contracts with private attorneys, and requires transparency of all state contingency fee contracts with private attorneys.


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Unchallenged

Government Retention of Personal Injury Lawyers: H.B. 4007 (2016)

West Virginia|2016

Places guidelines and regulatory parameters on the practice of the

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Places guidelines and regulatory parameters on the practice of the Attorney General hiring private    attorneys on a contingency fee basis in civil litigation.


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Unchallenged

Government Retention of Personal Injury Lawyers: HB 309 (2002).

Virginia|2002

Requires open and competitive bidding in accordance with the Virginia

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Requires open and competitive bidding in accordance with the Virginia Public Procurement Act for all contingent fee contracts for legal services between a state agency or state agent and outside counsel, where fees and services are reasonably expected to exceed $100,000.


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Government Retention of Personal Injury Lawyers: SB 113 (1999).

Texas|1999

Requires that the state attempt to handle all litigation through

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Requires that the state attempt to handle all litigation through in-house counsel.  Provides that when seeking outside counsel, the contracting agency must first seek an hourly fee arrangement.   Provides that contingent fee contracts in excess of $100,000 be approved by a Legislative Review Board.  Requires that at the conclusion of contingent fee representation, the state receive a statement of hours worked and total fees recovered.


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Government Retention of Personal Injury Lawyers: H 3375 (2011).

South Carolina|2011

A circuit solicitor may employ outside counsel, in his discretion,

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A circuit solicitor may employ outside counsel, in his discretion, without approval of the Attorney General, for civil forfeiture proceedings arising from criminal activity or from estreatment of bail bonds. In any other matter, the circuit solicitor must obtain written approval of the Attorney General prior to retaining counsel to or filing a civil cause of action.


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Government Retention of Personal Injury Lawyers: SB 2047 (1999); N.D. Cent. Code, § 54-12-08.1.

North Dakota|1999

Provides that an emergency commission must approve the attorney general’s

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Provides that an emergency commission must approve the attorney general’s appointment of a special assistant attorney general in a civil case in which the amount in controversy exceeds $150,000.  Prohibits a state governmental agency from contracting legal services by contingent fee unless the entity receives an appointment from the attorney general for a special assistant attorney general.


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Government Retention of Personal Injury Lawyers: H.B. 211 (2012)

Mississippi|2012

Enacts conditions required of the Attorney General before entering into

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Enacts conditions required of the Attorney General before entering into a contingency fee contract for legal services.  Requires public notice of contracts entered into and contingency fees paid, and places incremental restrictions upon the amount of contingency fees that can be paid out of a specific recovery amount.


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Government Retention of Personal Injury Lawyers- S.B. 59 (2011); Sections 34.376, 34.378, and 34.380.

Missouri|2011

Prohibits the state and any of its agents from entering

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Prohibits the state and any of its agents from entering into a contingency fee contract with a private attorney, unless the Attorney General makes specific written findings.  The Attorgeny General is required to request written proposals from private attorneys, unless the Attorney General makes a written determination that requesting proposals is not feasible.  If the Attorney General requests proposals from private attorneys, the Attorney General is requried to choose the lowest and best bid or request the office of adminstration establish an independent panel to evaluate the proposals and choose the lowest and best bid.  A private attorney who is representing the state on a contingency fee basis is requried to maintain records about their expenses for at least four years after the contract terminates.  The attorney general’s office is required to respond to requests to make these records available to the public under the sunshine law.  The Attorney General is required to post certain information about the contingency fee arrangement on its website.  The Attorney General also is required to submit an annual report regarding the use of contingency fee contracts.


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Government Retention of Personal Injury Lawyers: HF 1481, Article 2, Sec. 5 {8.065} (2005).

Minnesota|2005

Specifies that the attorney general may not enter into a

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Specifies that the attorney general may not enter into a contract for legal services in which the fees and expenses paid by the state, or can reasonably be expected to exceed $1 million unless the attorney general first submits the proposed contract to the Legislative Advisory Commission, and waits at least 20 days to receive a possible recommendation from the commission.


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Government Retention of Personal Injury Lawyers: HB 2627 (2000); K.S.A. § 75-37,130- K.S.A. § 75-37,135.

Kansas|2000

Requires open and competitive bidding for all contingent fee contracts

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Requires open and competitive bidding for all contingent fee contracts for legal services between the state and outside counsel, where fees and services exceed $7,500.  Requires proposed contracts for legal services between the state and outside counsel in excess of $1 million to be submitted to the legislative budget committee for approval.  Requires, at the conclusion of representation, outside counsel to provide the state with a statement of hours worked and fees recovered through a contract for legal services between the state and outside counsel.  Provides that in no instance shall the state pay fees, even on a contingent fee basis, in excess of $1,000 per hour.


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Government Retention of Personal Injury Lawyers: S.B. 214 (2011); Burns Ind. Code Ann. § 4-6-3-2

Indiana|2011

Requires the attorney general to make certain determinations before entering

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Requires the attorney general to make certain determinations before entering into a contingency fee contract with a private attorney, and requires the attorney general to publish certain information concerning contingency fee contracts on the attorney general’s website.


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Government Retention of Personal Injury Lawyers: H.F. 563 (2012)

Iowa|2012

Provides that a state shall not enter into a contingency

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Provides that a state shall not enter into a contingency fee contract with a private attorney unless the Attorney General makes a written determination prior to entering into the contract, that contingency fee representation is both cost-effective and in the public interest.  Limits the aggregate contingency fee a private attorney can receive to 25% of any recovery up to $10 million, 20% of any recovery between $10-$15 million, 15% of any recovery between $15-$20 million, 10% of any portion between $20-$25 million, and 5% of any recovery that exceeds $25 million.  In no event shall the aggregate contingency fee of any recovery exceed $50 million.  Allows the caps to be waived if approved by the majority of the state Executive Council (Governor, Secretary of State, Auditor, Treasurer, and Secretary of Agriculture).  Requires the contract, payments made under the contract, and the attorney general’s written determinations to be posted on the attorney general’s website.


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Attorney General Sunshine: H.B. 437; Fla. Stat. § 16.0155

Florida

Prohibited the Department of Legal Affairs of the Office of

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Prohibited the Department of Legal Affairs of the Office of the Attorney General from entering into contingency fee contracts with private attorneys unless the Attorney General made a written determination prior to entering into such a contract that contingency fee   representation was both cost effective and in the public interest.  Required the Attorney General, upon making his or her written determination, to request proposals from private     attorneys to represent the Department of Legal Affairs on contingency-fee basis unless the Attorney General determined in writing that requesting such proposals were not feasible under the circumstances.  Provided that written determination did constitute final agency action, and provided that requests for proposals and contract awards were not subject to challenge under the Administrative Procedure Act.  Required maintenance of specified records, limited the amount of contingency fee that may be paid to private attorney pursuant to contract with the Department of Legal Affairs, and required Internet posting of specified information


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Government Retention of Personal Injury Lawyers: HB 7502, section 104 (2005); Conn. Gen. Stat. § 4-28b.

Connecticut|2005

Requires proposals or requests for qualification and negotiation procedures for

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Requires proposals or requests for qualification and negotiation procedures for any contract between the Attorney General or state agency and private attorneys in which the contingency fee is reasonably expected to exceed $250,000.  Specified that the Attorney General is to develop such procedures and qualifications.


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Government Retention of Personal Injury Lawyers: SB 86 (2003); Amended C.R.S. 13-17-301.

Colorado|2003

Requires monthly reports by outside counsel to include number of

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Requires monthly reports by outside counsel to include number of hours worked, court costs incurred, and to provide such data in aggregate from the effective date of the contingent fee contract.  Requires at the conclusion of representation, outside counsel to provide the state with a statement of hours worked and fees recovered through a contract for legal services between the state and outside counsel. Provided that in no instance shall the state pay fees, even on a contingent fee basis, in excess of $1,000 per hour.


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Government Retention of Personal Injury Lawyers: S.B. 1132 (2012)

Arizona|2012

Limits contingency fees by prohibiting the state from entering into

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Limits contingency fees by prohibiting the state from entering into a contingency fee contract providing for the state’s private attorney to receive a contingency fee from this state’s portion of the recovery.  The bill also requires posting of executed contingency fees contracts unless the attorney general determines that the posting may cause damage to the reputation of any business or person.


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Government Retention of Personal Injury Lawyers: H.B. 2423 (2011); A.R.S. § 41-4801.

Arizona|2011

Bars the state from entering into a contingency fee contract

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Bars the state from entering into a contingency fee contract with a private attorney unless the attorney general first makes a written determination that the contingency fee representation is both cost effective and in the public interest.  The contract must be posted on the attorney general’s website for at least 365 days.  Limits the amount of aggregate contingency fees that the attorney may receive. The private attorney may not receive more than 25% of any recovery less than $10 million, 20% of any recovery of between $10 million and $15 million, 15% of any recovery of between $15 million and $20 million, 10% of any recovery of between $20 million and $25 million, and 5% of any recovery of more than $25 million.


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Transparency in Private Attorney Contracts Act: H.B. 227 (2013)

Alabama|2013

Provides that any state entity seeking to enter into a

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Provides that any state entity seeking to enter into a contingency fee contract must make a written determination that such representation is both cost-effective and in the public interest.  This must include details about whether the state has sufficient legal and financial resources to handle the matter on its own without a contingency fee contract; the expected time and labor required, as well as the complexity and skill necessary to handle the issues; and the amount of experience desired for the particular attorney services and the nature of private attorney’s experience with similar matters.   To ensure that the public interest is kept as the foremost consideration when cases are handled by private attorneys on contingency fee basis, the bill mandates that a government attorney retains complete control over the litigation.  The government attorney has supervisory authority, retains veto power over any decisions by private attorneys, may be contacted directly by defendants, must attend all settlement conferences, and has exclusive discretion over settlement decisions.   Contingency fees will be limited to 22 percent of the first $10 million; plus 20 percent of the next $15 million; plus 16 percent of the next $25 million; plus 12 percent of the next $25 million; plus 8 percent of the next $25 million; plus 7.1 percent of any recovery exceeding $100 million.  Total fees are capped at $75 million per action.  For transparency and accountability of public funds, contingency fee attorneys must keep detailed records of expenses and time spent on a case, which would be available to the state for inspection.  The contingency fee contract and all payments made are to be posted on the state’s Open Alabama website.


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