AB 2804, as introduced, Brown. 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 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 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. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 50035 is added to the Government Code,
2to read:
(a) Prior to entering into a contingency fee contract
4for legal services relating to civil litigation initiated by the
5legislative body, the legislative body shall make a determination
6that use of a contingency fee contract would be cost effective and
7in the public interest. In making this determination, the legislative
8body shall make written findings in support of using a contingency
9fee contract. These findings shall include, but are not limited to,
10the following:
11(1) Whether the existing legal and financial resources within
12the city attorney or county counsel’s office would be sufficient to
13handle the matter.
14(2) The time and labor required, the novelty, complexity, and
15
difficult of the questions involved, and the skill requisite to perform
16the attorney services properly.
17(3) The geographic area where the attorney services are to be
18provided.
19(4) The amount of experience desired for the particular type of
20attorney services to be provided and the nature of the contract
21attorney’s experience with similar issues or cases.
22(b) After making the determination and findings required by
23subdivision (a), the legislative body shall draft and prominently
24post on the city or county’s Internet Web site a written request for
25proposals to represent the city or county on a contingency fee basis.
26(c) Any contingency fee contract shall include the following
27provisions:
28(1) The lead attorney within the office of the city attorney or
29county counsel who is assigned to the matter, or the legislative
30body if the city or county does not have one, shall retain complete
31control over the course and conduct of the case.
P3 1(2) An attorney within the office of the city attorney or county
2counsel who has supervisory authority, or the legislative body if
3the city or county does not have one, shall be personally involved
4in the oversight of the litigation.
5(3) The lead attorney within the office of the city attorney or
6county counsel assigned to the matter, or the legislative body if
7the city or county does not have one, shall retain the authority to
8reject any decisions made by the contracted attorney.
9(4) Any defendant that is the subject of litigation may contact
10the lead attorney
within the city attorney or county counsel’s office
11directly, or the legislative body if the city or county does not have
12one, without having to confer with the contracted attorney.
13(5) An attorney within the office of the city attorney or county
14counsel who has supervisory authority, or the legislative body if
15the city or county does not have one, shall attend all formal or
16informal settlement conferences.
17(6) All decisions regarding settlement of the matter shall be
18exclusively reserved to the discretion of the lead attorney within
19the office of the city attorney or county counsel, or the legislative
20body if the city or county does not have one.
21(7) The contracted attorney shall provide the city attorney or
22county counsel, or the legislative body if the city or county does
23not have one, a written status report on
at least a monthly basis
24that includes a description of any significant court hearings,
25conferences, motions, or discovery and sets forth the anticipated
26legal strategy for the following month.
27(d) (1) A copy of any executed contingency fee contract for
28legal services shall be prominently posted on the city or county’s
29internet Web site for public inspection within five days after the
30date the contract is executed and shall remain posted on the Web
31site for the duration of the matter.
32(2) Any payment of a contingency fee pursuant to a contingency
33fee contract for legal services shall be prominently posted on the
34city attorney or county counsel’s Internet Web site within 15 days
35following the payment to the attorney or law firm and shall remain
36posted on the Internet Web site for at least one year following the
37issuance of the payment.
38(e) The calculation of a contingency fee shall not include any
39portion of the judgment that is attributable to a fine, civil penalty,
40or punitive damages.
P4 1(f) Any private attorney or firm under contract to provide legal
2services to a legislative body pursuant to a contingency fee contract
3shall maintain detailed records of their services including, but not
4limited to, records of all expenses, disbursements, charges, credits,
5invoices, and hours billed or worked under the contract by the
6private attorney or paralegal in increments no greater than 1⁄10 of
7an hour. These records shall be maintained by the legislative body
8for at least four years from the conclusion of the contract. These
9records shall be available for inspection under the California Public
10Records Act (Chapter 3.5
(commencing with Section 6250) of
11Division 7 of Title 1), subject to any redaction authorized by that
12act.
13(g) This section shall not be construed to expand the authority
14of any local agency to enter into a contract for legal services where
15no authority previously existed.
The Legislature finds and declares that Section 1 of
17this act, which adds Section 50035 to the Government Code,
18furthers, within the meaning of paragraph (7) of subdivision (b)
19of Section 3 of Article I of the California Constitution, the purposes
20of that constitutional section as it relates to the right of public
21access to the meetings of local public bodies or the writings of
22local public officials and local agencies. Pursuant to paragraph (7)
23of subdivision (b) of Section 3 of Article I of the California
24Constitution, the Legislature makes the following findings:
25It is in the public interest for contracts entered into by a city or
26county for legal services based on a contingency fee to be open
27and transparent, therefor, this act would further
the purposes of
28Section 3 of Article 1 of the California Constitution.
O
99