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AB-1146 Cities and counties: legal services: contingency fee contracts.(2017-2018)

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Date Published: 04/18/2017 09:00 PM
AB1146:v98#DOCUMENT

Amended  IN  Assembly  April 18, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 1146


Introduced by Assembly Member Flora

February 17, 2017


An act to add Section 50035 to the Government Code, relating to local government.


LEGISLATIVE COUNSEL'S DIGEST


AB 1146, as amended, Flora. Cities and counties: legal services: contingency fee contracts.
Existing law authorizes a city to hire a city attorney or a county to hire a county counsel for the representation of the city or county in legal matters.
This bill would require a city council or the board of supervisors of a county to, prior to entering into a contingency fee contract for legal services relating to civil litigation initiated by the city or county, make a determination that use of a contingency fee contract would be cost-effective and in the public interest. The bill would require this determination to be supported by specified findings and would require the city council or the board of supervisors to post on the city or county’s Internet Web site a written request for proposals to represent the city or county on a contingency basis. The bill would restrict political campaign contributions to a candidate for public office in the agency a city or county represented, or seeking to be represented, on a contingency basis from a person or firm representing or seeking to represent the agency, city or county, as specified. The bill would require any contract entered into by the city or county for legal services on a contingency fee basis under these provisions to meet specified requirements, and would provide require that any contingency fee shall be calculated on the basis of the judgment amount excluding any award for fine, civil penalty, or punitive damages.

The California Constitution requires local agencies, for the purpose of ensuring public access to the meetings of public bodies and the writings of public officials and agencies, to comply with a statutory enactment that amends or enacts laws relating to public records or open meetings and contains findings demonstrating that the enactment furthers the constitutional requirements relating to this purpose.

This bill would make legislative findings to that effect.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 50035 is added to the Government Code, to read:
50035.

(a)Prior to entering into a contingency fee contract for legal services relating to civil litigation initiated by the legislative body, the legislative body shall make a determination that use of a contingency fee contract would be cost effective and in the public interest. In making this determination, the legislative body shall make written findings in support of using a contingency fee contract. These findings shall include, but are not limited to, the following:

(1)Whether the existing legal and financial resources within the city attorney or county counsel’s office would be sufficient to handle the matter.

(2)The time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skill requisite to perform the attorney services properly.

(3)The geographic area where the attorney services are to be provided.

(4)The amount of experience desired for the particular type of attorney services to be provided and the nature of the contract attorney’s experience with similar issues or cases.

(b)(1)After making the determination and findings required by subdivision (a), the legislative body shall draft and prominently post on the city or county’s Internet Web site a written request for proposals to represent the city or county on a contingency fee basis.

(2)(A)

50035.
 (a) (1) A person or firm that has made a political campaign contribution to a candidate running for a public office in the a local agency requesting proposals for a contingency fee contract for legal services relating to civil litigation initiated by the legislative body shall not submit a proposal for, or enter into, a contingency fee contract for legal services for the agency within 12 months of making the contribution.

(B)

(2) A person or firm entering into a contract for legal services relating to civil litigation initiated by the legislative body to represent a public local agency on a contingency fee basis shall not make a political campaign contribution to a candidate running for a public office in the agency within 12 months of entering the contract.

(c)

(b) Any contingency fee contract for legal services relating to civil litigation initiated by the legislative body shall include the following provisions:
(1) The lead attorney within the office of the city attorney or county counsel who is assigned to the matter, or the legislative body if the city or county does not have one, shall retain complete control over the course and conduct of the case.
(2) An attorney within the office of the city attorney or county counsel who has supervisory authority, or the legislative body if the city or county does not have one, shall be personally involved in the oversight of the litigation.
(3) The lead attorney within the office of the city attorney or county counsel assigned to the matter, or the legislative body if the city or county does not have one, shall retain the authority to reject any decisions made by the contracted attorney.
(4) Any defendant that is the subject of litigation may contact the lead attorney within the city attorney or county counsel’s office directly, or the legislative body if the city or county does not have one, without having to confer with the contracted attorney.
(5) An attorney within the office of the city attorney or county counsel who has supervisory authority, or the legislative body if the city or county does not have one, shall attend all formal or informal settlement conferences.
(6) All decisions regarding settlement of the matter shall be exclusively reserved to the discretion of the lead attorney within the office of the city attorney or county counsel, or the legislative body if the city or county does not have one.
(7) The contracted attorney shall provide the city attorney or county counsel, or the legislative body if the city or county does not have one, a written status report on at least a monthly basis that includes a description of any significant court hearings, conferences, motions, or discovery and sets forth the anticipated legal strategy for the following month.

(d)(1)A copy of any executed contingency fee contract for legal services shall be prominently posted on the city or county’s internet Web site for public inspection within five days after the date the contract is executed and shall remain posted on the Web site for the duration of the matter.

(2)Any payment of a contingency fee pursuant to a contingency fee contract for legal services shall be prominently posted on the city attorney or county counsel’s Internet Web site within 15 days following the payment to the attorney or law firm and shall remain posted on the Internet Web site for at least one year following the issuance of the payment.

(e)

(c) The calculation of a contingency fee in a contract for legal services relating to civil litigation initiated by the legislative body shall not include any portion of the judgment that is attributable to a fine, civil penalty, or punitive damages.

(f)Any private attorney or firm under contract to provide legal services to a legislative body pursuant to a contingency fee contract shall maintain detailed records of their services including, but not limited to, records of all expenses, disbursements, charges, credits, invoices, and hours billed or worked under the contract by the private attorney or paralegal in increments no greater than 110 of an hour. These records shall be maintained by the legislative body for at least four years from the conclusion of the contract. These records shall be available for inspection under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1), subject to any redaction authorized by that act.

(g)This section shall not be construed to expand the authority of any local agency to enter into a contract for legal services where no authority previously existed.

SEC. 2.

The Legislature finds and declares that Section 1 of this act, which adds Section 50035 to the Government Code, furthers, within the meaning of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the purposes of that constitutional section as it relates to the right of public access to the meetings of local public bodies or the writings of local public officials and local agencies. Pursuant to paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the Legislature makes the following findings:

It is in the public interest for contracts entered into by a city or county for legal services based on a contingency fee to be open and transparent, therefor, this act would further the purposes of Section 3 of Article 1 of the California Constitution.