§ 41-4-125 — Employmenet of Attorneys

(a)(1) Except as otherwise provided in this section, attorneys retained to represent the state in litigation shall be appointed by the Attorney General in consultation with the Governor from a list of attorneys maintained by the Attorney General. All attorneys interested in representing the state may apply and shall be included on the list. The selection of the attorney or law firm shall be based upon the level of skill, experience, and expertise required in the litigation and the fees charged by the attorney or law firm shall be taken into consideration so that the state receives the best representation for the funds paid. Fees shall be negotiated and approved by the Governor in consultation with the Attorney General. Maximum fees paid for legal representation that does not involve a contingency fee contract may be established by executive order of the Governor.
(2) Attorneys retained by any state purchasing entity to render nonlitigation legal services shall be selected by the entity from a list of attorneys maintained by the Legal Advisor to the Governor. All attorneys interested in representing any purchasing state entity may apply and shall be included on the list. The selection of the attorney or law firm shall be based upon the level of skill, experience, and expertise required for the services, but the fees charged by the attorney or law firm shall be taken into consideration so that the state entity shall receive the best representation for the funds paid. Fees for the services shall be negotiated by the state entity requiring the services and shall be subject to the review and approval of the Governor or the Director of Finance when so designated by the Governor.
(b) This
article
does not apply to either of the following:
(1) The appointment of attorneys or experts by a court.
(2) The retention of experts by the state for the purposes of litigation or avoidance of litigation.
(c) Nothing in this section shall be construed as altering or amending the Governor’s authority to retain attorneys under Section 36-13-2; provided, the Governor shall select the attorneys from
the list maintained by the Attorney General.
(d)(1) A governmental body may not enter into a contingency fee contract with any attorney or law firm unless the contracting agency makes a written determination prior to entering into a contingency fee 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:
a. Whether there are sufficient and appropriate legal and financial resources within the state to handle the matter without a contingency contract.
b. The expected time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skill requisite to perform the attorney services properly.
c. The geographic area where the attorney services are to be provided.
d. 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.
(2) Subject to subdivision (3), the state may not enter into a contingency fee contract that provides for the contingency fee counsel to receive an aggregate contingency fee calculated from the gross recovery resulting from a judgment or settlement in each action, exclusive of expenses, in excess of the total of all of the following:
a. Twenty-two percent of any recovery
that does not exceed
ten million dollars ($10,000,000); plus
b. Twenty percent of any portion of the recovery
that exceeds
ten million dollars ($10,000,000)
but does not exceed
twenty-five million dollars ($25,000,000); plus
c. Sixteen percent of any portion of the recovery
that exceeds
twenty-five million dollars ($25,000,000)
but does not exceed
fifty million dollars ($50,000,000); plus
d. Twelve percent of any portion of the recovery
that exceeds
fifty million dollars ($50,000,000)
but does not exceed
seventy-five million dollars ($75,000,000); plus
e. Eight percent of any portion of the recovery that exceeds seventy-five million dollars ($75,000,000) but does not exceed one hundred million dollars ($100,000,000); plus
f. Seven and one-tenth (7.1) percent of any portion of the recovery exceeding one hundred million dollars ($100,000,000).
(3) The aggregate fee paid under a contingency fee contract may not exceed seventy-five million dollars ($75,000,000).
(4) All litigation expenses incurred by the contingency fee counsel shall be paid or reimbursed upon approval on a monthly basis upon presentation of documentation of the expenses to the contracting agency.
(5) The Attorney General may certify in writing to the Governor that, in the opinion of the Attorney General, an issue affecting the public health, safety, convenience, or economic welfare of the state exists that justifies that the contingency fee limitations set forth in subdivision (2) or (3) be suspended in the case of a particular contingency fee contract. Upon receipt of the written certification, the Governor, by the issuance of an executive order, may waive the limitations with respect to the specified contingency fee contract.
(6) A governmental body may not enter into a contingency fee contract unless all of the following requirements are met throughout the entire contract period, including any extensions of the period:
a. A government attorney has complete control over the course and conduct of the case.
b. A government attorney with supervisory authority is personally involved in overseeing the litigation.
c. A government attorney retains veto power over any decisions made by the contingency fee counsel.
d. After giving reasonable notice to the contingency fee counsel, any defendant that is the subject of the litigation may contact the lead government attorney directly unless directed to do otherwise by that attorney. Contingency fee counsel
may
participate in the discussion with the lead government attorney or attorneys unless, after consultation with contingency fee counsel, the lead government attorney agrees to the discussion without contingency fee counsel being present.
e. A government attorney with supervisory authority for the case shall attend all settlement conferences.
f. Decisions regarding settlement of the case shall be reserved exclusively to the discretion of the government attorney and the state.
(7) The Attorney General shall develop a standard addendum to every contract for contingent fee attorney services that shall be used in all cases, describing in detail what is expected of both the contingency fee counsel and the state, including, without limitation, the requirements listed in subdivision (6).
(8) Copies of any executed contingency fee contract and the contracting agency’s written determination to enter into the contingency fee contract with the contingency fee counsel and any payment of any contingency fees shall be posted online as provided in Section 41-4-65.
(9) Every contingency fee counsel, from the inception of the contingency fee contract until at least four years after the contract expires or is terminated, shall maintain detailed current records, including documentation of all time records, expenses, disbursements, charges, credits, underlying receipts and invoices, and other financial transactions that concern the provision of the attorney services. The contingency fee counsel shall make all the records available for inspection and copying upon request by the Governor, Attorney General, or contracting agency. In addition, the contingency fee counsel shall maintain detailed contemporaneous time records for the attorneys and paralegals working on the contract in six minute increments and, upon request, shall provide promptly these records to the Governor, Attorney General, or contracting agency.
(10) Any contingency fee paid to a private attorney or law firm shall be paid from the State Treasury from the funds recovered as a result of the
contingency
fee contract within 30 days of receipt of the recovery unless ordered to do otherwise by a court with jurisdiction over the litigation subject to the contingency fee contract.

Legislative History

(Act 2021-296, §2; Act 2023-542, §1.)