Bill Text: IA HF563 | 2011-2012 | 84th General Assembly | Enrolled

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Bill Title: A bill for an act creating the transparency in private attorney contracts Act. Effective 7-1-12.

Spectrum: Committee Bill

Status: (Passed) 2012-05-02 - Signed by Governor. H.J. 900. [HF563 Detail]

Download: Iowa-2011-HF563-Enrolled.html

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House File 563
AN ACT
CREATING THE TRANSPARENCY IN PRIVATE ATTORNEY CONTRACTS ACT.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
Section 1. Section 13.7, Code Supplement 2011, is amended
to read as follows:
13.7 Special counsel.
1. Compensation shall not be allowed to any person for
services as an attorney or counselor to an executive department
of the state government, or the head of an executive department
of state government, or to a state board or commission.
However, the executive council may authorize employment of
legal assistance, at a reasonable compensation, in a pending
action or proceeding to protect the interests of the state,
but only upon a sufficient showing, in writing, made by the
attorney general, that the department of justice cannot for
reasons stated by the attorney general perform the service.
The reasons and action of the council shall be entered upon
its records. If the attorney general determines that the
department of justice cannot perform legal service in an
action or proceeding, the executive council shall request the
department involved in the action or proceeding to recommend
legal counsel to represent the department. If the attorney
general concurs with the department that the person recommended
is qualified and suitable to represent the department, the
person recommended shall be employed. If the attorney general
does not concur in the recommendation, the department shall
submit a new recommendation. This section subsection does
not affect the general counsel for the utilities board of the
department of commerce, the legal counsel of the department of
workforce development, or the general counsel for the property

House File 563, p. 2
assessment appeal board.
2. The executive branch and the attorney general shall
also comply with chapter 23B when retaining legal counsel on a
contingency fee basis under this section, as appropriate.
Sec. 2. NEW SECTION . 23B.1 Citation.
This chapter may be known and cited as the “Transparency in
Private Attorney Contracts Act” .
Sec. 3. NEW SECTION . 23B.2 Definitions.
For the purposes of this chapter:
1. “Government attorney” means an attorney employed by the
state as a staff attorney in the attorney general’s office.
2. “Private attorney” means any private attorney or law
firm.
3. “State” means the state of Iowa and includes 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.
Sec. 4. NEW SECTION . 23B.3 Contracts for legal services.
1. The 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 such a contract
that contingency fee representation is both cost-effective
and in the public interest. Any written determination shall
include specific findings for each of the following factors:
a. Whether sufficient and appropriate legal and financial
resources exist within the attorney general’s office to handle
the matter.
b. The time and labor required, the novelty, complexity, and
difficulty of the questions involved, and the skill required to
perform the attorney services properly.
c. The geographic area where the attorney services are to
be provided.
d. The amount of experience desired for the particular
kind of attorney services to be provided and the nature of the
private attorney’s experience with similar issues or cases.
2. If the attorney general makes the determination
described in subsection 1, the attorney general shall
follow the procurement process used by the department of
administrative services in seeking private attorneys to
represent the department of justice on a contingency fee basis,
unless the attorney general determines that the procurement
process is not feasible under the circumstances and sets forth
the basis for this determination in writing.

House File 563, p. 3
3. a. Except as provided in paragraph “c” , the state shall
not enter into a contingency fee contract that provides for a
private attorney to receive an aggregate contingency fee in
excess of the sum of the following:
(1) Twenty-five percent of any recovery up to and including
ten million dollars, exclusive of reasonable costs and
expenses.
(2) Twenty percent of any portion of any recovery that
exceeds ten million dollars up to and including fifteen million
dollars, exclusive of reasonable costs and expenses.
(3) Fifteen percent of any portion of any recovery that
exceeds fifteen million dollars up to and including twenty
million dollars, exclusive of reasonable costs and expenses.
(4) Ten percent of any portion of any recovery that exceeds
twenty million dollars up to and including twenty-five million
dollars, exclusive of reasonable costs and expenses.
(5) Five percent of any portion of any recovery that exceeds
twenty-five million dollars, exclusive of reasonable costs and
expenses.
b. Except as provided in paragraph “c” , the aggregate
contingency fee of any recovery shall not exceed fifty million
dollars, exclusive of reasonable costs and expenses, and
regardless of the number of lawsuits filed or the number of
private attorneys retained to achieve the recovery.
c. The attorney general may request a waiver from the
executive council of the aggregate contingency fee limits
in paragraphs “a” and “b” if the attorney general provides a
thirty-day notice of the attorney general’s intent to request
a waiver. The executive council, upon unanimous consent, may
grant such a waiver.
4. The attorney general shall develop a standard addendum to
every contract for contingent fee attorney services that shall
be used in all cases, describing in detail what is expected of
both the contracted private attorney and the state, including,
without limitation, all of the following requirements:
a. A government attorney shall retain complete control over
the course and conduct of the case.
b. A government attorney with supervisory authority shall be
personally involved in overseeing the litigation.
c. A government attorney shall retain veto power over any
decisions made by the contracted private attorney.
d. A defendant that is the subject of such litigation may
contact the lead government attorney directly, without having

House File 563, p. 4
to confer with the contracted private attorney.
e. Decisions regarding settlement of the case shall be
reserved exclusively to the discretion of the government
attorney and the state.
f. A government attorney with supervisory authority for the
case shall participate in all settlement conferences.
5. Copies of any executed contingency fee contract as
well as the attorney general’s written determination to
enter into a contingency fee contract with a private attorney
shall be posted on the attorney general’s website for public
inspection within five business days after the date the
contract is executed and shall remain posted on the website for
the duration of the contingency fee contract, including any
extensions or amendments thereto. Any payment of contingency
fees shall be posted on the attorney general’s website within
fifteen days after the payment of such contingency fees to the
private attorney and shall remain posted on the website for at
least one year thereafter.
6. Any private attorney under contract to provide services
to the state on a contingency fee basis 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 attorney services. The private attorney
shall make all such records available for inspection and
copying upon request in accordance with chapter 22.
7. The attorney general shall submit a report to the
secretary of the senate and the chief clerk of the house of
representatives describing the use of contingency fee contracts
with private attorneys in the preceding calendar year by
February 1 of each year. At a minimum, the report shall
include all of the following information:
a. Identify all new contingency fee contracts entered into
during the year and all previously executed contingency fee
contracts that remain current during any part of the year, and
for each contract describe:
(1) The name of the private attorney with whom the state has
contracted, including the name of the attorney’s law firm.
(2) The nature and status of the legal matter.
(3) The name of the parties to the legal matter.
(4) The amount of any recovery.

House File 563, p. 5
(5) The amount of any contingency fee paid.
b. Copies of any written determinations made under
subsection 1 or 2 during the year.
Sec. 5. NEW SECTION . 23B.4 No expansion of authority to
contract.
This chapter shall not be construed to expand the authority
of a state agency or state agent to enter into contracts where
no such authority previously existed.
Sec. 6. NEW SECTION . 23B.5 Chapter inapplicable.
This chapter shall not apply to legal services contracts
under chapter 13B.
______________________________
KRAIG PAULSEN
Speaker of the House
______________________________
JOHN P. KIBBIE
President of the Senate
I hereby certify that this bill originated in the House and
is known as House File 563, Eighty-fourth General Assembly.
______________________________
W. CHARLES SMITHSON
Chief Clerk of the House
Approved _______________, 2012
______________________________
TERRY E. BRANSTAD
Governor