MISSISSIPPI LEGISLATURE
2012 Regular Session
To: Judiciary, Division A
By: Senator(s) Fillingane
AN ACT TO AMEND SECTION 7-5-1, MISSISSIPPI CODE OF 1972, TO CLARIFY AND REVISE THE DUTIES OF THE ATTORNEY GENERAL; TO AMEND SECTION 7-5-5, MISSISSIPPI CODE OF 1972, TO REQUIRE DETAILED TIME AND EXPENSE RECORDS TO BE MAINTAINED BY OUTSIDE COUNSEL RETAINED BY THE ATTORNEY GENERAL; TO AMEND SECTION 7-5-7, MISSISSIPPI CODE OF 1972, TO PLACE CERTAIN RESTRICTIONS UPON CONTINGENT FEE CONTRACTS FOR LEGAL SERVICES WHEN CONTRACTED FOR BY THE ATTORNEY GENERAL WITH OUTSIDE COUNSEL; TO CREATE NEW SECTION 7-5-8, MISSISSIPPI CODE OF 1972, TO ENUMERATE RESTRICTIONS ON SUCH CONTINGENT FEE CONTRACTS; TO AMEND SECTION 7-5-21, MISSISSIPPI CODE OF 1972, TO REVISE THE REQUIREMENTS FOR THE CASE DOCKET TO BE KEPT BY THE ATTORNEY GENERAL; TO AMEND SECTION 7-5-39, MISSISSIPPI CODE OF 1972, TO REQUIRE THE ATTORNEY GENERAL TO AUTHORIZE OUTSIDE COUNSEL UNDER CERTAIN CIRCUMSTANCES; TO AMEND SECTION 27-104-105 MISSISSIPPI CODE OF 1972, TO CONFORM STATE AGENCY PAYMENT FOR LEGAL SERVICES; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 7-5-1, Mississippi Code of 1972, is amended as follows:
7-5-1. The Attorney General provided for by Section 173 of the Mississippi Constitution shall be elected at the same time and in the same manner as the Governor is elected. His term of office shall be four (4) years and his compensation shall be fixed by the Legislature. He shall be the chief legal officer and advisor for the state, both civil and criminal, and is charged with managing all litigation on behalf of the state, except as otherwise specifically provided by law. No arm or agency of the state government shall bring or defend a suit against another * * * arm or agency without prior written approval of the Attorney General. He shall have the powers of the Attorney General at common law and, except as otherwise provided in Section 7-5-39, is given the sole power to bring or defend a lawsuit on behalf of a state agency, the subject matter of which is of statewide interest. He shall intervene and argue the constitutionality of any statute when notified of a challenge thereto, pursuant to the Mississippi Rules of Civil Procedure. His qualifications for office shall be as provided for chancery and circuit judges in Section 154 of the Mississippi Constitution.
SECTION 2. Section 7-5-5, Mississippi Code of 1972, is amended as follows:
7-5-5. (1) The Attorney General shall appoint nine (9) competent attorneys, each of whom shall be designated as an assistant attorney general. The assistants shall each possess all of the qualifications required by law of the Attorney General and shall have power and authority under the direction and supervision of the Attorney General to perform all of the duties required by law of that officer; and each shall be liable to the pains and penalties to which the Attorney General is liable. The assistants shall serve at the will and pleasure of the Attorney General, and they shall devote their entire time and attention to the duties pertaining to the department of justice as required by the general laws. The compensation of * * * all * * * assistants authorized by law shall be fixed by the Attorney General not to exceed the compensation fixed by law * * *.
(2) (a) The Attorney General shall designate three (3) of the * * * assistant attorneys general authorized under subsection (1) of this section to devote their time and attention primarily to defending and aiding in the defense in all courts of any suit, filed or threatened, against the State of Mississippi, against any subdivision thereof, or against any agency or instrumentality of the state or subdivision, including all elected officials and any other officer or employee thereof. When the circumstances permit, the assistants may perform any of the Attorney General's powers and duties, including, but not limited to, engaging in lawsuits outside the state when in his opinion this would help bring about the equal application of federal laws and court decisions in every state and guaranteeing equal protection of the laws as guaranteed every citizen by the United States Constitution.
(b) * * * The Attorney General * * * may employ outside counsel as special assistant attorneys general * * * on a fee or contract basis; * * * the Attorney General shall be the sole judge of the compensation in such cases.
(i) Any contract for services of outside counsel shall require current and complete written time and expense records that describe in detail the time and money spent each day in performance of the contract.
(ii) On conclusion of the matter for which the outside legal services were obtained, outside counsel shall provide a complete written statement of all fees and expenses, and the final complete time and expense records.
(3) The Attorney General may discharge any assistant attorney general or special assistant attorney general at his pleasure and appoint another in his stead. The assistant attorneys general shall devote their entire time and attention to the duties pertaining to the department of justice under the control and supervision of the Attorney General.
SECTION 3. Section 7-5-7, Mississippi Code of 1972, is amended as follows:
7-5-7. (1) The Governor may engage outside counsel on a noncontingent fee basis to assist the Attorney General in cases to which the state is a party when, in his opinion, the interest of the state requires it, subject to the action of the Legislature in providing compensation for such services.
(2) (a) The Attorney General is hereby authorized and empowered to appoint and employ outside counsel, on a fee or salary basis not to exceed recognized bar rates for similar services, to assist the Attorney General in the preparation for, prosecution, or defense of any litigation in the state or federal courts or before any federal commission or agency in which the state is a party or has an interest. The Attorney General may designate the outside counsel as special assistant Attorney General * * *.
(b) If the compensation agreed upon will be governed by a contingency fee contract, that contract must conform with the requirements of Section 7-5-8.
(3) The Attorney General may also employ special investigators on a per diem or salary basis, to be agreed upon at the time of employment, for the purpose of interviewing witnesses, ascertaining facts, or rendering any other services that may be needed by the Attorney General in the preparation for and prosecution of suits by or against the State of Mississippi, or in suits in which the Attorney General is participating on account of same being of statewide interest.
(4) The Attorney General may pay travel and other expenses of employees and appointees under this chapter in the same manner and amount as authorized by law for the payment of travel and expenses of state employees and officials.
(5) The compensation of appointees and employees under this chapter shall be paid out of the Attorney General's contingent fund, or out of any other funds appropriated to the Attorney General's office.
SECTION 4. The following shall be codified as Section 7-5-8, Mississippi Code of 1972:
7-5-8. (1) Before entering into a contingency fee contract, the Attorney General must first make a written determination that contingency fee representation is both cost-effective and in the public interest. The required written determination shall include specific findings for each of the following factors:
(a) Whether there exist sufficient and appropriate legal and financial resources within the Attorney General's office to handle the matter.
(b) The 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 outside attorney's experience with similar issues or cases.
(2) The state may not enter into a contingency fee contract that provides for the outside attorney to receive an aggregate contingency fee in excess of the following:
(a) For any matter settled before initiation of litigation, the following structured contingent fee schedule for aggregate recovery shall apply and govern compensation under the contract:
(i) For recovery by the State of Mississippi up to Twenty-five Million Dollars ($25,000,000.00): fifteen percent (15%).
(ii) For recovery by the State of Mississippi between Twenty-five Million Dollars ($25,000,000.00) and Seventy-five Million Dollars ($75,000,000.00): thirteen percent (13%).
(iii) For recovery by the State of Mississippi between Seventy-five Million Dollars ($75,000,000.00) to Two Hundred Million Dollars ($200,000,000.00): seven percent (7%).
(iv) For recovery by the State of Mississippi between Two Hundred Million Dollars ($200,000,000.00) to Five Hundred Million Dollars ($500,000,000.00: four percent (4%).
(v) For recovery by the State of Mississippi between Five Hundred Million Dollars ($500,000,000.00) to One Billion Dollars ($1,000,000,000.00): two percent (2%).
(vi) For recovery by the State of Mississippi greater than One Billion Dollars ($1,000,000,000.00): one percent (1%).
(b) For any matter resolved after initiation of litigation, the following structured contingent fee schedule for aggregate recovery shall apply and govern compensation under the contract:
(i) For recovery by the State of Mississippi up to Twenty-five Million Dollars ($25,000,000.00):
1. After filing complaint before discovery completed: seventeen percent (17%).
2. After filing complaint after discovery complete awaiting trial: twenty percent (20%).
3. After commencement of trial: twenty-five percent (25%).
(ii) For recovery by the State of Mississippi between Twenty-five Million Dollars ($25,000,000.00) and Seventy-five Million Dollars ($75,000,000.00):
1. After filing complaint before discovery completed: fifteen percent (15%).
2. After filing complaint after discovery complete awaiting trial: eighteen percent (18%).
3. After commencement of trial: twenty-one percent (21%).
(iii) For recovery by the State of Mississippi between Seventy-five Million Dollars ($75,000,000.00) to Two Hundred Million Dollars ($200,000,00.00):
1. After filing complaint before discovery completed: ten percent (10%).
2. After filing complaint after discovery complete awaiting trial: fourteen percent (14%).
3. After commencement of trial: eighteen percent (18%).
(iv) For recovery by the State of Mississippi between Two Hundred Million Dollars ($200,000,000.00) to Five Hundred Million Dollars ($500,000,000.00):
1. After filing complaint before discovery completed: six percent (6%).
2. After filing complaint after discovery complete awaiting trial: eight percent (8%).
3. After commencement of trial: ten percent (10%).
(v) For recovery by the State of Mississippi between Five Hundred Million Dollars ($500,000,000.00) to One Billion Dollars ($1,000,000,000.00):
1. After filing complaint before discovery completed: three percent (3%).
2. After filing complaint after discovery complete awaiting trial: four percent (4%).
3. After commencement of trial: five percent (5%).
(vi) For recovery by the State of Mississippi over One Billion Dollars ($1,000,000,000.00):
1. After filing complaint before discovery completed: two percent (2%).
2. After filing complaint after discovery complete awaiting trial: three percent (3%).
3. After commencement of trial: four percent (4%).
(c) The structured contingent fee schedule set forth in this subsection (3) shall operate cumulatively so that, in relation to each successive category or level of recovery by the State of Mississippi, there shall be a specified percentage or percentages governing the amount or valuation of the aggregate contingent fee in each category, so that the fee paid as an aggregate sum or value equivalent computed by multiplying the percentage applicable to each such successive category or level of recovery by the State of Mississippi by the incremental dollar amount falling within each such categories and the separate products derived by multiplying these factors in each category shall be added together to compute the aggregate fee payable.
(3) The limits on fees set forth in subsection (2) of this section shall not apply if:
(a) The Attorney General makes a written determination stating the reasons why a greater fee is necessary, proper, and in the best interests of the state in a particular case; and
(b) The Outside Counsel Oversight Commission approves any terms of the contingency contract that exceed the limits set forth in subsection (2) of this section.
(4) The Outside Counsel Oversight Commission shall consist of the Governor, the Lieutenant Governor, and the Secretary of State; actions of the commission shall be taken by majority vote. (5) Unless the Attorney General determines that to do so would negatively affect the state's interest, copies of any executed contingency fee contract and the Attorney General's written determination to enter into a contingency fee contract with the outside attorney shall be posted on the Attorney General's website for public inspection within five (5) business days after the date the contract is executed and shall remain posted on the website for the duration of the contingency fee contract, including any extensions or amendments to the contract. Any payment of contingency fees shall be posted on the Attorney General's website within fifteen (15) days after the payment of the contingency fees to the outside attorney and shall remain posted on the website for at least three hundred sixty-five (365) days after the payment is made.
(6) Any outside attorney under contract to provide services to the state on a contingency fee basis shall, from the inception of the contract until not less than four (4) years after the contract expires or is terminated, maintain detailed current records, including documentation of all expenses, disbursements, charges, credits, underlying receipts and invoices, and other financial transactions that concern the providing of attorney services. The outside attorney shall make all these records available for inspection and copying upon request in accordance with Title 25, Chapter 61, Mississippi Code of 1972. In addition, the outside attorney shall maintain detailed contemporaneous time records for the attorneys and paralegals working on the matter in increments of no greater than one-tenth (1/10) of an hour, and shall promptly provide these records to the Attorney General upon request.
(7) If any arm or agency of the state contracts for outside legal counsel pursuant to Section 7-5-39(3) on a contingency fee basis, the arm or agency of the state shall provide complete and timely information to the Office of the Attorney General as to every requirement of this section for inclusion in the report under this section.
SECTION 5. Section 7-5-21, Mississippi Code of 1972, is amended as follows:
7-5-21. The Attorney General shall keep a docket of all causes in which he is required to appear, whether through his office or through retained counsel, which * * * is a public record and must show the full style of the case, the cause number of the action, the county, district and court in which the causes have been instituted and tried, and whether they be civil or criminal. If civil, the docket must show the nature of the demand, the stage of the proceedings, the name and address of any retained or contract counsel, a memorandum of the judgment when prosecuted to judgment, any process issued thereon, whether satisfied or not, and if not satisfied, the return of the sheriff. If criminal, the docket must show the nature of the crime, the mode of prosecution, the stage of the proceedings, a memorandum of the sentence when prosecuted to a sentence, the execution thereof, if executed, and, if not executed, the reasons of delay or prevention.
SECTION 6. Section 7-5-39, Mississippi Code of 1972, is amended as follows:
7-5-39. (1) Except as otherwise provided by law, the Attorney General shall * * * represent the state, in person or by his assistant, as counsel in all suits against the state in other courts or the Supreme Court at the seat of government, and he shall, in like manner, act as counsel for any of the state officers in suits brought by or against them in their official capacity, touching any official duty or trust * * *.
(2) No legal action on behalf of any arm or agency of the state may be taken until seven (7) working days' written notice of the proposed legal action is given to the proper person in charge of the arm or agency unless irreparable injury to the state would result by waiting for the expiration of the seven-day period.
(3) The Attorney General shall authorize retention of independent counsel from outside his office by an arm or agency of the state or a statewide elected officer acting in his official capacity if:
(a) (i) 1. There is a significant disagreement as to the legal strategy to be used in the case; or
2. The Attorney General declines requested representation; and
(ii) The Outside Counsel Oversight Commission has approved the retention of outside counsel.
(b) Appeal from the decision of the Outside Counsel Oversight Commission as to the significance of a legal-strategy disagreement shall be to any court of competent jurisdiction.
(4) The Attorney General may pursue the collection of any claim or judgment in favor of the state outside of the state.
SECTION 7. Section 27-104-105, Mississippi Code of 1972, is amended as follows:
27-104-105. (1) The Department of Finance and Administration shall not process any warrant requested by any state agency for payment for legal services without first determining that the services and contract were approved:
(a) Except as provided in paragraph (b) of this subsection, by the Attorney General and the State Personnel Board; contracts for legal services performed for the State Highway Department in eminent domain cases shall not require approval by the State Personnel Board.
(b) In the case of legal proceedings initiated under the provisions of Section 7-5-39(3), by the Outside Counsel Oversight Commission established under Section 7-5-8.
(2) The State Auditor shall test for compliance with this section.
SECTION 8. This act shall take effect and be in force from and after July 1, 2012.