Florida Senate - 2010                              CS for SB 712
       
       
       
       By the Committee on Judiciary; and Senators Thrasher and Gaetz
       
       
       
       
       590-01395-10                                           2010712c1
    1                        A bill to be entitled                      
    2         An act relating to contingency fee agreements between
    3         the 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
    6         Office of the Attorney General from entering into a
    7         contingency fee contract with a private attorney
    8         unless the Attorney General makes a written
    9         determination prior to entering into such a contract
   10         that contingency fee representation is both cost
   11         effective and in the public interest; requiring that
   12         such written determination include certain findings;
   13         requiring that the Attorney General, upon making his
   14         or her written determination, request proposals from
   15         private attorneys to represent the department on a
   16         contingency-fee basis unless the Attorney General
   17         determines in writing that requesting such proposals
   18         is not feasible under the circumstances; providing
   19         that the written determination does not constitute a
   20         final agency action that is subject to review;
   21         providing that the request for proposals and contract
   22         award are not subject to challenge under the
   23         Administrative Procedure Act; requiring that a private
   24         attorney maintain detailed contemporaneous time
   25         records with regard to work performed on the matter by
   26         any attorneys or paralegals assigned to the matter in
   27         specified increments; requiring that a private
   28         attorney provide such record to the department upon
   29         request; limiting the amount of a contingency fee that
   30         may be paid to a private attorney pursuant to a
   31         contract with the department; requiring that copies of
   32         any executed contingency fee contract and the Attorney
   33         General’s written determination to enter into such
   34         contract be posted on the department’s website within
   35         a specified period after the date on which the
   36         contract is executed; requiring that such information
   37         remain posted on the website for a specified duration;
   38         requiring that any payment of contingency fees be
   39         posted on the department’s website within a specified
   40         period after the date on which payment of such
   41         contingency fees is made to the private attorney;
   42         requiring that such information remain posted on the
   43         website for a specified duration; requiring that the
   44         Attorney General report to the Legislature on the use
   45         of contingency fee contracts with private attorneys;
   46         providing an effective date.
   47  
   48  Be It Enacted by the Legislature of the State of Florida:
   49  
   50         Section 1. Section 16.0155, Florida Statutes, is created to
   51  read:
   52         16.0155 Contingency fee agreements.—
   53         (1) As used in this section, the term:
   54         (a) “Department” means the Department of Legal Affairs.
   55         (b) “Private attorney” means any private attorney or law
   56  firm.
   57         (2) The department may not enter into a contingency fee
   58  contract with a private attorney unless the Attorney General
   59  makes a written determination prior to entering into such a
   60  contract that contingency fee representation is both cost
   61  effective and in the public interest. Any written determination
   62  shall include specific findings for each of the following
   63  factors:
   64         (a) Whether there exist sufficient and appropriate legal
   65  and financial resources within the department to handle the
   66  matter.
   67         (b) The time and labor required; the novelty, complexity,
   68  and difficulty of the questions involved; and the skill
   69  requisite to perform the attorney services properly.
   70         (c) The geographic area where the attorney services are to
   71  be provided.
   72         (d) The amount of experience desired for the particular
   73  kind of attorney services to be provided and the nature of the
   74  private attorney’s experience with similar issues or cases.
   75         (3) If the Attorney General makes the determination
   76  described in subsection (2), notwithstanding the exemption
   77  provided in s. 287.057(5)(f) the Attorney General shall request
   78  proposals from private attorneys to represent the department on
   79  a contingency-fee basis, unless the Attorney General determines
   80  in writing that requesting proposals is not feasible under the
   81  circumstances. The written determination does not constitute a
   82  final agency action subject to review pursuant to ss. 120.569
   83  and 120.57. For purposes of this subsection only, the department
   84  is exempt from the requirements of s. 120.57(3), and neither the
   85  request for proposals nor the contract award are subject to
   86  challenge pursuant to ss. 120.569 and 120.57.
   87         (4) In addition to the requirements set forth in s.
   88  287.059(16), any private attorney shall maintain detailed
   89  contemporaneous time records for the attorneys and paralegals
   90  working on the matter in increments of no greater than 1/10 of
   91  an hour and shall promptly provide these records to the
   92  department, upon request.
   93         (5) Notwithstanding s. 287.059(7)(a), the department may
   94  not enter into a contingency fee contract that provides for the
   95  private attorney to receive an aggregate contingency fee in
   96  excess of:
   97         (a) Twenty-five percent of any recovery of up to $10
   98  million; plus
   99         (b) Twenty percent of any portion of such recovery between
  100  $10 million and $15 million; plus
  101         (c) Fifteen percent of any portion of such recovery between
  102  $15 million and $20 million; plus
  103         (d) Ten percent of any portion of such recovery between $20
  104  million and $25 million; plus
  105         (e) Five percent of any portion of such recovery exceeding
  106  $25 million.
  107  
  108  In no event shall the aggregate contingency fee exceed $50
  109  million, exclusive of reasonable costs and expenses, and
  110  irrespective of the number of lawsuits filed or the number of
  111  private attorneys retained to achieve the recovery.
  112         (6) Copies of any executed contingency fee contract and the
  113  Attorney General’s written determination to enter into a
  114  contingency fee contract with the private attorney shall be
  115  posted on the department’s website for public inspection within
  116  5 business days after the date the contract is executed and
  117  shall remain posted on the website for the duration of the
  118  contingency fee contract, including any extensions or amendments
  119  thereto. Any payment of contingency fees shall be posted on the
  120  department’s website within 15 days after the payment of such
  121  contingency fees to the private attorney and shall remain posted
  122  on the website for at least 365 days thereafter.
  123         (7)By February 1 of each year, the Attorney General shall
  124  submit a report to the President of the Senate and the Speaker
  125  of the House of Representatives describing the use of
  126  contingency fee contracts with private attorneys in the
  127  preceding calendar year. At a minimum, the report shall:
  128         (a)Identify all new contingency fee contracts entered into
  129  during the year and all previously executed contingency fee
  130  contracts that remain current during any part of the year, and
  131  for each contract describe:
  132         1.The name of the private attorney, including the
  133  attorney’s law firm name, with whom the department has
  134  contracted;
  135         2.The nature and status of the legal matter;
  136         3.The name of the parties to the legal matter;
  137         4.The amount of any recovery; and
  138         5.The amount of any contingency fee paid.
  139         (b)Include copies of any written determinations made under
  140  subsection (2) during the year.
  141         Section 2. This act shall take effect July 1, 2010.