| 1 | A bill to be entitled |
| 2 | An act relating to contingency fee agreements between the |
| 3 | Department of Legal Affairs and private attorneys; |
| 4 | creating s. 16.0155, F.S.; providing definitions; |
| 5 | prohibiting the Department of Legal Affairs of the Office |
| 6 | of the Attorney General from entering into a contingency |
| 7 | fee contract with a private attorney unless the Attorney |
| 8 | General makes a written determination prior to entering |
| 9 | into such a contract that contingency fee representation |
| 10 | is both cost-effective and in the public interest; |
| 11 | requiring that such written determination include certain |
| 12 | findings; requiring that the Attorney General, upon making |
| 13 | his or her written determination, request proposals from |
| 14 | private attorneys to represent the department on a |
| 15 | contingency fee basis unless the Attorney General |
| 16 | determines in writing that requesting such proposals is |
| 17 | not feasible under the circumstances; providing that the |
| 18 | written determination does not constitute a final agency |
| 19 | action subject to review pursuant to state law; providing |
| 20 | that the request for proposals and contract award are not |
| 21 | subject to challenge under the Administrative Procedure |
| 22 | Act; requiring that a private attorney maintain detailed |
| 23 | contemporaneous time records with regard to work performed |
| 24 | on the matter by any attorneys or paralegals assigned to |
| 25 | the matter in specified increments; requiring that a |
| 26 | private attorney provide such record to the department |
| 27 | upon request; limiting the amount of a contingency fee |
| 28 | that may be paid to a private attorney pursuant to a |
| 29 | contract with the department; providing an exception; |
| 30 | requiring that copies of any executed contingency fee |
| 31 | contract and the Attorney General's written determination |
| 32 | to enter into such contract be posted on the department's |
| 33 | website within a specified period after the date on which |
| 34 | the contract is executed; requiring that such information |
| 35 | remain posted on the website for a specified duration; |
| 36 | requiring that any payment of contingency fees be posted |
| 37 | on the department's website within a specified period |
| 38 | after the date on which payment of such contingency fees |
| 39 | is made to the private attorney; requiring that such |
| 40 | information remain posted on the website for a specified |
| 41 | duration; providing an effective date. |
| 42 |
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| 43 | Be It Enacted by the Legislature of the State of Florida: |
| 44 |
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| 45 | Section 1. Section 16.0155, Florida Statutes, is created |
| 46 | to read: |
| 47 | 16.0155 Contingency fee agreements.-- |
| 48 | (1) For the purpose of this section, the following |
| 49 | definitions shall apply: |
| 50 | (a) "Department" means the Department of Legal Affairs. |
| 51 | (b) "Private attorney" means any private attorney or law |
| 52 | firm. |
| 53 | (2) The department shall not enter into a contingency fee |
| 54 | contract with a private attorney unless the Attorney General |
| 55 | makes a written determination prior to entering into such a |
| 56 | contract that contingency fee representation is both cost- |
| 57 | effective and in the public interest. Any written determination |
| 58 | shall include specific findings for each of the following |
| 59 | factors: |
| 60 | (a) Whether there exist sufficient and appropriate legal |
| 61 | and financial resources within the department to handle the |
| 62 | matter. |
| 63 | (b) The time and labor required; the novelty, complexity, |
| 64 | and difficulty of the questions involved; and the skill |
| 65 | requisite to perform the attorney services properly. |
| 66 | (c) The geographic area where the attorney services are to |
| 67 | be provided. |
| 68 | (d) The amount of experience desired for the particular |
| 69 | kind of attorney services to be provided and the nature of the |
| 70 | private attorney's experience with similar issues or cases. |
| 71 | (3) When the Attorney General makes the determination |
| 72 | described in subsection (2), then, notwithstanding the exemption |
| 73 | provided in s. 287.057(5)(f), the Attorney General shall request |
| 74 | proposals from private attorneys to represent the department on |
| 75 | a contingency fee basis, unless the Attorney General determines |
| 76 | in writing that requesting proposals is not feasible under the |
| 77 | circumstances. The written determination does not constitute a |
| 78 | final agency action subject to review pursuant to ss. 120.569 |
| 79 | and 120.57. For purposes of this subsection only, the department |
| 80 | is exempt from the requirements of s. 120.57(3), and neither the |
| 81 | request for proposals nor the contract award shall be subject to |
| 82 | challenge pursuant to ss. 120.569 and 120.57. |
| 83 | (4) In addition to the requirements set forth in s. |
| 84 | 287.059(16), any private attorney shall maintain detailed |
| 85 | contemporaneous time records for the attorneys and paralegals |
| 86 | working on the matter in increments of no greater than 1/10 of |
| 87 | an hour and shall promptly provide these records to the |
| 88 | department, upon request. |
| 89 | (5)(a)1. No contingency fee contract entered into by the |
| 90 | department shall provide for the private attorney to receive an |
| 91 | aggregate contingency fee in excess of: |
| 92 | a. Twenty-five percent of any recovery of up to $10 |
| 93 | million; plus |
| 94 | b. Twenty percent of any portion of such recovery between |
| 95 | $10 million and $15 million; plus |
| 96 | c. Fifteen percent of any portion of such recovery between |
| 97 | $15 million and $20 million; plus |
| 98 | d. Ten percent of any portion of such recovery between $20 |
| 99 | million and $25 million; plus |
| 100 | e. Five percent of any portion of such recovery exceeding |
| 101 | $25 million. |
| 102 | 2. An aggregate contingency fee under subparagraph 1. |
| 103 | shall not exceed $50 million, exclusive of reasonable costs and |
| 104 | expenses, and irrespective of the number of lawsuits filed or |
| 105 | the number of private attorneys retained to achieve the |
| 106 | recovery. |
| 107 | (b) The provisions of paragraph (a) shall not apply if, |
| 108 | upon consultation with the Cabinet, the Attorney General |
| 109 | determines that exigent or unusual circumstances or a need or |
| 110 | requirement for specialized legal knowledge or experience |
| 111 | justifies an exception to the requirements of paragraph (a) and |
| 112 | provides written evidence to support the determination. |
| 113 | (6) Copies of any executed contingency fee contract and |
| 114 | the Attorney General's written determination to enter into a |
| 115 | contingency fee contract with the private attorney shall be |
| 116 | posted on the department's website for public inspection within |
| 117 | 5 business days after the date the contract is executed and |
| 118 | shall remain posted on the website for the duration of the |
| 119 | contingency fee contract, including any extensions or amendments |
| 120 | thereto. Any payment of contingency fees shall be posted on the |
| 121 | department's website within 15 days after the payment of such |
| 122 | contingency fees to the private attorney and shall remain posted |
| 123 | on the website for at least 180 days thereafter. |
| 124 | Section 2. This act shall take effect July 1, 2009. |