Bill Text: MS SB2102 | 2012 | Regular Session | Introduced
Bill Title: TiPAC; create the Transparency in Private Attorney Contracts Act.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2012-03-06 - Died In Committee [SB2102 Detail]
Download: Mississippi-2012-SB2102-Introduced.html
MISSISSIPPI LEGISLATURE
2012 Regular Session
To: Judiciary, Division A
By: Senator(s) Fillingane
Senate Bill 2102
AN ACT TO CREATE THE TRANSPARENCY IN PRIVATE ATTORNEY CONTRACTS ACT; TO ENACT DEFINITIONS; TO ENACT CONDITIONS REQUIRED OF THE ATTORNEY GENERAL BEFORE ENTERING INTO A CONTINGENCY FEE CONTRACT FOR LEGAL SERVICES; TO REQUIRE PUBLIC NOTICE OF CONTRACTS ENTERED INTO AND CONTINGENCY FEES PAID; TO PLACE INCREMENTAL RESTRICTIONS UPON THE AMOUNT OF CONTINGENCY FEES THAT CAN BE PAID OUT OF A SPECIFIC RECOVERY AMOUNT; TO AMEND SECTIONS 7-5-1, 7-5-5 AND 7-5-39, MISSISSIPPI CODE OF 1972, TO CONFORM; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) Title. This section may be known as the Transparency in Private Attorney Contracts (TiPAC) Act.
(2) Definitions. As used in this section, the term:
(a) "Government attorney" means an attorney employed by the state as a staff attorney in the Attorney General's Office.
(b) "Private attorney" means any private attorney or law firm.
(c) "State" means the State of Mississippi, 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.
(3) Procurement. (a) The state may not enter into a contingency fee contract with a private attorney unless the Attorney General makes a written determination before entering into the 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:
(i) Whether there exist sufficient and appropriate legal and financial resources within the Attorney General's office to handle the matter.
(ii) The time and labor required; the novelty, complexity, and difficulty of the questions involved; and the skill requisite to perform the attorney services properly.
(iii) The geographic area where the attorney services are to be provided.
(iv) 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.
(b) If the Attorney General makes the determination described in paragraph (a) of this subsection, the Attorney General shall request proposals from private attorneys to represent the state on a contingency fee basis, unless the Attorney General determines that requesting proposals is not feasible under the circumstances and sets forth the basis for this determination in writing.
(c) The state may not enter into a contingency fee contract that provides for the private attorney to receive an aggregate contingency fee in excess of:
(i) Twenty-five percent (25%) of any portion of a recovery not exceeding Ten Million Dollars ($10,000,000.00); plus
(ii) Twenty percent (20%) of any portion of a recovery between Ten Million Dollars ($10,000,000.00) and Fifteen Million Dollars ($15,000,000.00); plus
(iii) Fifteen percent (15%) of any portion of a recovery between Fifteen Million Dollars ($15,000,000.00) and Twenty Million Dollars ($20,000,000.00); plus
(iv) Ten percent (10%) of any portion of a recovery between Twenty Million Dollars ($20,000,000.00) and Twenty-five Million Dollars ($25,000,000.00); plus
(v) Five percent (5%) of any portion of a recovery exceeding Twenty-five Million Dollars ($25,000,000.00).
In no event shall the aggregate contingency fee exceed Fifty Million Dollars ($50,000,000.00), exclusive of reasonable costs and expenses, irrespective of the number of lawsuits filed or the number of private attorneys retained to achieve the recovery.
(d) The Attorney General shall develop a standard clause for inclusion in 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, the following requirements and the state shall not enter into a contract for contingency fee attorney services that does not incorporate these requirements:
(i) The government attorneys shall retain complete control over the course and conduct of the case.
(ii) A government attorney with supervisory authority shall be personally involved in overseeing the litigation.
(iii) The government attorneys shall retain veto power over any decisions made by outside counsel.
(iv) Any defendant that is the subject of litigation may contact the lead government attorneys directly, without having to confer with contingency fee counsel.
(v) A government attorney with supervisory authority for the case shall attend all settlement conferences.
(vi) Decisions regarding settlement of the case shall be reserved exclusively to the discretion of the government attorneys and the state.
(e) Copies of any executed contingency fee contract and the Attorney General's written determination to enter into a contingency fee contract with the private attorney shall be posted on the Attorney General's website for public inspection within five (5) 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 to the contract. Any payment of contingency fees shall be posted on the Attorney General's website within fifteen (15) days after the payment of the contingency fees to the private attorney and shall remain posted on the website for at least three hundred sixty-five (365) days after the payment is made.
(f) 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 (4) 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 providing of attorney services. The private attorney shall make all such records available for inspection and copying upon request in accordance with Title 25, Chapter 61, Mississippi Code of 1972. In addition, the private attorney shall maintain detailed contemporaneous time records for the attorneys and paralegals working on the matter in increments of no greater than one-tenth (1/10) of an hour and shall promptly provide these records to the Attorney General upon request.
(g) By February 1 of each year, the Attorney General shall submit a report to the President of the Senate and the Speaker of the House of Representatives describing the use of contingency fee contracts with private attorneys in the preceding calendar year. At a minimum, the report shall:
(i) Identify all new contingency fee contracts entered into during the year being reported 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; and
5. The amount of any contingency fee paid.
(ii) Include copies of any written determinations made under subsection (3)(a) and (3)(b) during the year.
(4) No Expansion of Authority. Nothing in this section shall be construed to expand the authority of any state agency or state agent to enter into contracts if that authority did not exist before July 1, 2012.
SECTION 2. Section 7-5-1, Mississippi Code of 1972, is amended as follows:
7-5-1. (1) The Attorney General provided for by Section 173 of the Mississippi Constitution shall be elected at the same time and in the same manner as the Governor is elected. His term of office shall be four (4) years and his compensation shall be fixed by the Legislature. He shall be the chief legal officer and advisor for the state, both civil and criminal, and is charged with managing all litigation on behalf of the state. No arm or agency of the state government shall bring or defend a suit against another such arm or agency without prior written approval of the Attorney General. He shall have the powers of the Attorney General at common law and is given the sole power to bring or defend a lawsuit on behalf of a state agency, the subject matter of which is of statewide interest, and he shall intervene and argue the constitutionality of any statute when notified of a challenge thereto, pursuant to the Mississippi Rules of Civil Procedure. His qualifications for office shall be as provided for chancery and circuit judges in Section 154 of the Mississippi Constitution.
(2) Contingency fee contracts for legal services shall comply with Section 1 of this act.
SECTION 3. Section 7-5-5, Mississippi Code of 1972, is amended as follows:
7-5-5. (1) The Attorney General shall appoint nine (9) competent attorneys, each of whom shall be designated as an assistant attorney general. The assistants shall each possess all of the qualifications required by law of the Attorney General and shall have power and authority under the direction and supervision of the Attorney General to perform all of the duties required by law of that officer; and each shall be liable to the pains and penalties to which the Attorney General is liable. The assistants shall serve at the will and pleasure of the Attorney General, and they shall devote their entire time and attention to the duties pertaining to the Department of Justice as required by the general laws. The compensation of the within enumerated assistant attorneys general and all other regular assistants authorized by law, shall be fixed by the Attorney General not to exceed the compensation fixed by law for such assistants.
(2) The Attorney General is hereby authorized, empowered, and directed to designate three (3) of the said assistant attorneys general to devote their time and attention primarily to defending and aiding in the defense in all courts of any suit, filed or threatened, against the State of Mississippi, against any subdivision thereof, or against any agency or instrumentality of said state or subdivision, including all elected officials and any other officer or employee thereof. When the circumstances permit, such assistants may perform any of the Attorney General's powers and duties, including, but not limited to, engaging in lawsuits outside the state when in his opinion same would help bring about the equal application of federal laws and court decisions in every state and guaranteeing equal protection of the laws as guaranteed every citizen by the United States Constitution. To further prosecute and insure such purposes, the Attorney General is hereby further expressly authorized, empowered, and directed to employ such additional counsel as special assistant attorneys general as may be necessary or advisable, on a fee or contract basis; and the Attorney General shall be the sole judge of the compensation in such cases.
(3) Contingency fee contracts for legal services shall comply with Section 1 of this act.
(4) The Attorney General may discharge any assistant attorney general or special assistant attorney general at his pleasure and appoint another in his stead. The assistant attorneys general shall devote their entire time and attention to the duties pertaining to the Department of Justice under the control and supervision of the Attorney General.
SECTION 4. Section 7-5-39, Mississippi Code of 1972, is amended as follows:
7-5-39. (1) The Attorney General shall also represent the state, in person or by his assistant, as counsel in all suits against the state in other courts than the Supreme Court at the seat of government, and he shall, in like manner, act as counsel for any of the state officers in suits brought by or against them in their official capacity, touching any official duty or trust and triable at the seat of government. He may pursue the collection of any claim or judgment in favor of the state outside of the state.
(2) Contingency fee contracts for legal services shall comply with Section 1 of this act.
SECTION 5. This act shall take effect and be in force from and after July 1, 2012.
