First Regular Session 117th General Assembly (2011)
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SENATE ENROLLED ACT No. 214
AN ACT to amend the Indiana Code concerning state and local administration.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 4-6-3-2.5; (11)SE0214.1.1. -->
SECTION 1. IC 4-6-3-2.5 IS ADDED TO THE INDIANA CODE
AS A
NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2011]:
Sec. 2.5. (a) As used in this section, "agency" means a
state agency or a body corporate and politic.
(b) An agency may not enter into a contingency fee contract
with a private attorney unless the agency makes a written
determination before entering into the contract that contingency
fee representation is cost effective and in the public interest. The
written determination must include the specific findings described
in subsection (c).
(c) The written determination described in subsection (b) must
include a consideration of the following factors:
(1) Whether the agency has sufficient and appropriate legal
and financial resources to handle the matter.
(2) The time and labor required to conduct the litigation.
(3) The novelty, complexity, and difficulty of the questions
involved in the litigation.
(4) The expertise and experience required to perform the
attorney services properly.
(5) The geographic area where the attorney services are to be
provided.
(d) If the agency makes the determination described in
subsection (b), the attorney general shall request proposals from
private attorneys wishing to provide services on a contingency fee
basis, unless the agency determines in writing that requesting
proposals is not feasible under the circumstances.
(e) After the agency has made the determination in subsection
(b) and selected a private attorney, but before the agency and the
attorney enter into a contract to provide services on a contingency
fee basis, the inspector general shall make a determination in
writing that entering into the contract would not violate the code
of ethics or violate any statute or agency rule concerning conflict
of interest. An agency may not enter into a contingency fee
contract with a private attorney unless the inspector general has
made a written determination under this subsection.
(f) A private attorney who enters into a contingency fee contract
with the agency shall maintain detailed contemporaneous time
records for the attorneys and paralegals working on the matter in
increments of not greater than one-tenth (1/10) of an hour and
shall, upon request, promptly provide these records to the attorney
general.
(g) The agency may not enter into a contingency fee contract
that provides for the private attorney to receive an aggregate
contingency fee that exceeds the sum of the following:
(1) Twenty-five percent (25%) of any recovery that exceeds
two million dollars ($2,000,000) and that is not more than ten
million dollars ($10,000,000).
(2) Twenty percent (20%) of any part of a recovery of more
than ten million dollars ($10,000,000) and not more than
fifteen million dollars ($15,000,000).
(3) Fifteen percent (15%) of any part of a recovery of more
than fifteen million dollars ($15,000,000) and not more than
twenty million dollars ($20,000,000).
(4) Ten percent (10%) of any part of a recovery of more than
twenty million dollars ($20,000,000) and not more than
twenty-five million dollars ($25,000,000).
(5) Five percent (5%) of any part of a recovery of more than
twenty-five million dollars ($25,000,000).
An aggregate contingency fee may not exceed fifty million dollars
($50,000,000), excluding reasonable costs and expenses, regardless
of the number of lawsuits filed or the number of private attorneys
retained to achieve the recovery.
(h) Copies of any executed contingency fee contract, the
inspector general's written determination, and the agency's written
determination to enter into a contingency fee contract with the
private attorney shall be provided to the attorney general and,
unless the attorney general determines that disclosing the
contingency fee contract while the action is pending is not in the
best interests of the state, the contract shall be posted on the
attorney general's web site for public inspection not later than five
(5) business days after the date the contract is executed and must
remain posted on the web site for the duration of the contingency
fee contract, including any extensions to the original contract. Any
payment of contingency fees shall be posted on the attorney
general's web site not later than fifteen (15) days after the payment
of the contingency fees to the private attorney, and must remain
posted on the web site for at least one (1) year. If the attorney
general determines that disclosing the contingency fee contract is
not in the best interests of the state under this subsection, the
contract shall be posted on the attorney general's web site not later
than fifteen (15) days after the action is concluded.
(i) Every agency that has hired or employed a private attorney
on a contingency fee basis in the calendar year shall submit a
report describing the use of contingency fee contracts with private
attorneys to the attorney general before October 1 of each year.
The report must include the following:
(1) A description of 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.
The report must include, for each contract:
(A) the name of the private attorney with whom the
department has contracted, including the name of the
attorney's law firm;
(B) the nature and status of the legal matter;
(C) the name of the parties to the legal matter;
(D) the amount of any recovery; and
(E) the amount of any contingency fee paid.
(2) A copy of all written determinations made under this
section during the year.
The attorney general shall compile the reports and submit a
comprehensive report to the legislative council before November
1 of each year. The report must be in an electronic format under
IC 5-14-6.