Bill Text: OH SB344 | 2013-2014 | 130th General Assembly | Comm Sub
Bill Title: To provide transparency in contracts between the state and private attorneys.
Spectrum: Moderate Partisan Bill (Republican 9-1)
Status: (Engrossed - Dead) 2014-12-11 - Passed 3rd Consideration House [SB344 Detail]
Download: Ohio-2013-SB344-Comm_Sub.html
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Senator Seitz
Cosponsors:
Senators Brown, Beagle, Coley, Burke, Eklund, Obhof, Patton, Peterson, Schaffer
| To enact sections 9.49, 9.491, 9.492, 9.493, 9.494, | 1 |
| 9.495, 9.496, 9.497, and 9.498 of the Revised Code | 2 |
| to provide transparency in contracts between the | 3 |
| state and private attorneys. | 4 |
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
| Section 1. That sections 9.49, 9.491, 9.492, 9.493, 9.494, | 5 |
| 9.495, 9.496, 9.497, and 9.498 of the Revised Code be enacted to | 6 |
| read as follows: | 7 |
| Sec. 9.49. Sections 9.49 to 9.498 of the Revised Code shall | 8 |
| be known as the transparency in private attorney contracts act. | 9 |
| Sec. 9.491. As used in sections 9.49 to 9.498 of the Revised | 10 |
| Code: | 11 |
| (A) "Legal matter" means any administrative proceeding, case, | 12 |
| group of cases, or legal issue for which the state requires legal | 13 |
| representation or advice. | 14 |
| (B) "Private attorney" means any attorney in the private | 15 |
| practice of law or a law firm but does not mean an attorney | 16 |
| appointed by the attorney general pursuant to section 109.08 of | 17 |
| the Revised Code for the purpose of collecting debts certified to | 18 |
| the attorney general for collection under any law or debts that | 19 |
| the attorney general is authorized to collect. | 20 |
| (C) "State" means this state and any officer, department, | 21 |
| board, commission, division, bureau, council, or unit of | 22 |
| organization, however designated, of the executive branch of | 23 |
| government of this state and any of its agents. | 24 |
| (D) "Securities class action" means an action brought as a | 25 |
| class action that includes a violation of the "Securities Act of | 26 |
| 1933," 15 U.S.C. 77a and following, or the "Securities Exchange | 27 |
| Act of 1934," 15 U.S.C. 78a and following. | 28 |
| Sec. 9.492. (A) The state shall not enter into a contingency | 29 |
| fee contract with a private attorney unless the attorney general | 30 |
| or the attorney general's designee makes a written determination | 31 |
| prior to entering into that contract or within a reasonable time | 32 |
| after entering into the contract that private representation is | 33 |
| both cost-effective and in the public interest. Any written | 34 |
| determination shall include findings for each of the following | 35 |
| factors: | 36 |
| (1) Whether there exist sufficient and appropriate legal and | 37 |
| financial resources within the attorney general's office to handle | 38 |
| the matter involved; | 39 |
| (2) The nature of the legal matter for which private | 40 |
| representation is required so long as divulging that information | 41 |
| would not violate any ethical responsibility of the attorney | 42 |
| general or privilege held by the state. | 43 |
| (B) If the attorney general or the attorney general's | 44 |
| designee makes the determination described in division (A) of this | 45 |
| section, the attorney general or the attorney general's designee | 46 |
| shall request qualifications from private attorneys to represent | 47 |
| the state, unless the attorney general or the attorney general's | 48 |
| designee determines that requesting qualifications is not feasible | 49 |
| under the circumstances and sets forth the basis for this | 50 |
| determination in writing. | 51 |
| (C)(1) Except as otherwise provided in division (C)(2) of | 52 |
| this section and subject to divisions (C)(3) and (4) of this | 53 |
| section, the state shall not enter into a contingency fee contract | 54 |
| with a private attorney that provides for the private attorney to | 55 |
| receive an aggregate contingency fee in excess of the total of the | 56 |
| following amounts: | 57 |
| (a) Twenty-five per cent of any damages up to ten million | 58 |
| dollars; | 59 |
| (b) Twenty per cent of any portion of any damages of ten | 60 |
| million dollars or more but less than fifteen million dollars; | 61 |
| (c) Fifteen per cent of any portion of any damages of fifteen | 62 |
| million dollars or more but less than twenty million dollars; | 63 |
| (d) Ten per cent of any portion of any damages of twenty | 64 |
| million dollars or more but less than twenty-five million dollars; | 65 |
| (e) Five per cent of any portion of any damages of | 66 |
| twenty-five million dollars or more. | 67 |
| (2) Except as provided in division (D) of this section with | 68 |
| respect to security class actions, the aggregate contingency fee | 69 |
| under division (C)(1) of this section, exclusive of reasonable | 70 |
| costs and expenses, shall not exceed fifty million dollars, | 71 |
| regardless of the number of lawsuits filed or the number of | 72 |
| private attorneys retained to achieve the recovery, unless the | 73 |
| contract expressly authorizes a contingency fee in excess of fifty | 74 |
| million dollars. The attorney general shall not enter into a | 75 |
| contract authorizing a contingency fee in excess of fifty million | 76 |
| dollars without the approval of the controlling board. | 77 |
| (3) A contingency fee in a contingency fee contract under | 78 |
| division (C)(1) of this section shall not be based on penalties or | 79 |
| civil fines awarded or on any amounts attributable to penalties or | 80 |
| civil fines. | 81 |
| (4) The amount of a contingency fee paid to a private | 82 |
| attorney under a contingency fee contract between the state and | 83 |
| the private attorney shall be the percentage of the amount of | 84 |
| damages actually recovered by the state to which the private | 85 |
| attorney is entitled under division (C)(1) of this section. | 86 |
| (D) In any contingency fee contract covering a securities | 87 |
| class action in which this state is appointed as lead plaintiff | 88 |
| pursuant to section 27(a)(3)(B)(i) of the "Securities Act of | 89 |
| 1933," 15 U.S.C. 77z-1(a)(3)(B)(i) or section 21D(a)(3)(B)(i) of | 90 |
| the "Securities Exchange Act of 1934," 15 U.S.C. 78u-4(a)(3)(B)(i) | 91 |
| or in which any state is a class representative, division (C)(2) | 92 |
| of this section applies only with respect to the state's share of | 93 |
| any judgment, settlement amount, or common fund and does not apply | 94 |
| to the amount of attorney's fees that may be awarded to a private | 95 |
| attorney for representing other members of a class certified | 96 |
| pursuant to Rule 23 of the Federal Rules of Civil Procedure or | 97 |
| state class action procedures. | 98 |
| (E)(1) A contract entered into between the state and a | 99 |
| private attorney under this section shall include all of the | 100 |
| following provisions that apply throughout the term of the | 101 |
| contract and any extensions of that term: | 102 |
| (a) The private attorney shall acknowledge that the assistant | 103 |
| attorney general retains complete control over the course and | 104 |
| conduct of the case involved. | 105 |
| (b) An assistant attorney general with supervisory authority | 106 |
| shall oversee the litigation of the case. | 107 |
| (c) An assistant attorney general shall retain veto power | 108 |
| over any decisions made by the private attorney. | 109 |
| (d) Any opposing party in the case may contact the assistant | 110 |
| attorney general directly without having to confer with the | 111 |
| private attorney unless the assistant attorney general instructs | 112 |
| the opposing party otherwise. | 113 |
| (e) An assistant attorney general with supervisory authority | 114 |
| for the case may attend all settlement conferences. | 115 |
| (f) The private attorney shall acknowledge that final | 116 |
| approval regarding settlement of the case is reserved exclusively | 117 |
| to the discretion of the attorney general. | 118 |
| (2) Nothing in division (E)(1) of this section shall be | 119 |
| construed to limit the authority of the client regarding the | 120 |
| course, conduct, or settlement of the case. | 121 |
| Sec. 9.493. The state shall not enter into a contract with a | 122 |
| private attorney located outside this state unless the attorney | 123 |
| general determines that at least one of the following applies: | 124 |
| (A) There are no private attorneys with an office in this | 125 |
| state that are willing to accept the legal representation. | 126 |
| (B) All private attorneys with offices in this state that | 127 |
| possess the necessary experience or capability are conflicted and | 128 |
| unable to represent the state or the attorney general or lack | 129 |
| necessary personnel and capacity in the firm to take on the | 130 |
| engagement. | 131 |
| (C) The attorney general is prevented from engaging a private | 132 |
| attorney with an office in this state under the rules of the | 133 |
| controlling board regarding waiver of competitive selection. | 134 |
| (D) There are no private attorneys with offices in this state | 135 |
| that possess the necessary experience, capability, or capacity | 136 |
| required by the contemplated engagement. | 137 |
| Sec. 9.494. (A) A copy of the executed contingency fee | 138 |
| contract between the state and a private attorney pursuant to | 139 |
| section 9.492 or 9.493 of the Revised Code and any corresponding | 140 |
| submission by the attorney general to the controlling board | 141 |
| pursuant to division (C)(2) of section 9.492 of the Revised Code | 142 |
| shall be posted on the attorney general's web site and shall | 143 |
| remain posted on the web site for the duration of the contract. | 144 |
| (B) A private attorney under a contingency fee contract to | 145 |
| provide services to the state pursuant to section 9.492 or 9.493 | 146 |
| of the Revised Code shall maintain from the inception of the | 147 |
| contract until at least three years after the contract expires or | 148 |
| is terminated detailed current records, including documentation of | 149 |
| all expenses, disbursements, charges, credits, underlying receipts | 150 |
| and invoices, and other financial transactions that concern the | 151 |
| provision of the attorney services. The private attorney shall | 152 |
| maintain detailed contemporaneous time records for the attorneys | 153 |
| and paralegals working on the legal matter and shall promptly | 154 |
| provide these records to the attorney general upon request. | 155 |
| Sec. 9.495. By the first day of September of each year, the | 156 |
| attorney general shall submit a report to the president of the | 157 |
| senate and the speaker of the house of representatives describing | 158 |
| the use of contracts with private attorneys in the preceding | 159 |
| fiscal year. The report shall include the following: | 160 |
| (A) Identification of all contracts entered into during the | 161 |
| fiscal year and all previously executed contracts that remain | 162 |
| current during any part of the fiscal year or that have been | 163 |
| closed during any part of the fiscal year, and for each contract a | 164 |
| description of all of the following: | 165 |
| (1) The name of the private attorney with whom the state has | 166 |
| contracted, including the name of the private attorney's law firm | 167 |
| if the private attorney is an individual; | 168 |
| (2) The nature of the legal matter that is the subject of the | 169 |
| contract so long as divulging that information would not violate | 170 |
| any ethical responsibility of the attorney general or privilege | 171 |
| held by the state; | 172 |
| (3) The state entity the private attorney was engaged to | 173 |
| represent or counsel; | 174 |
| (4) The total legal fees approved by the attorney general for | 175 |
| payment to a private attorney by the state for legal services | 176 |
| rendered during the preceding fiscal year. | 177 |
| (B) Copies of any written determinations made pursuant to | 178 |
| sections 9.492 to 9.494 of the Revised Code during the fiscal | 179 |
| year. | 180 |
| Sec. 9.496. Sections 9.491 to 9.495 of the Revised Code do | 181 |
| not apply to contingency fee contracts and renewals thereof that | 182 |
| are in existence on the effective date of this section. | 183 |
| Sec. 9.497. Nothing in sections 9.49 to 9.496 of the Revised | 184 |
| Code shall be construed to expand the authority of any state | 185 |
| agency or state agent to enter into contracts if no such authority | 186 |
| previously existed. | 187 |
| Sec. 9.498. The general assembly intends that any limitations | 188 |
| on entering into a contingency fee contract, as provided by | 189 |
| sections 9.491 to 9.495 of the Revised Code, are to be applied | 190 |
| only to contracts with a private attorney retained on a | 191 |
| contingency fee basis by the state. These limitations shall not | 192 |
| apply to contingency fee contracts between private parties and | 193 |
| contracts not involving the state. | 194 |
