Senate Bill No. 600

(By Senators Oliverio, Burnette, Sprouse and McKenzie)

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[Introduced February 15, 2002; referred to the Committee

on the Judiciary.]

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A BILL to amend chapter five-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article three-b, relating to the private attorney retention act; requiring director of purchasing division to submit proposal for hiring of attorneys to joint committee on government and finance in certain situations; authorizing the committee to conduct public hearing on the proposal; requiring the committee to issue a report to the director; requiring the protection of evidentiary privileges; requiring director to submit final request for proposal under certain circumstances; requiring submission of legal services contract to joint committee on government and finance after awarding of contract for legal services; authorizing committee to hold public hearing on contract; requiring committee to issue report on contract; providing the provisions of the article do not apply in certain actions; requiring director of purchasing division to prepare and submit reports; providing for the contents of certain reports by director; providing courts, before approving attorneys' fees, conduct an evidentiary hearing; authorizing persons to provide information to the court; and setting forth criteria for the court to consider in determining whether to award attorneys' fees.

Be it enacted by the Legislature of West Virginia:

That chapter five-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article three-b, to read as follows:

ARTICLE 3B. PRIVATE ATTORNEY RETENTION ACT.

§5A-3B-1. Procedures for hiring attorneys by state agencies.

(a) Prior to entering a contract for legal services where the amount of the fees paid to an attorney or firm of attorneys reasonably may exceed two hundred thousand dollars, the director of the purchasing division shall submit the proposed request for proposal to the joint committee on government and finance. Within thirty days after submission of such request for proposal, the committee may hold a public hearing on the proposed request for proposal and shall issue a report to the director of the purchasing division. The report shall include any proposed changes to the proposed request for proposal suggested by the committee. The
committee is not authorized to waive the evidentiary privileges of the state, or any of the persons or entities that state attorneys are representing or acting in concert within any litigation or anticipated litigation. The committee, the director of the purchasing division and their employees shall take all reasonable steps to protect these privileges. The director of the purchasing division shall review the report and adopt a final request for proposal as considered appropriate, in view of the report, and shall file the final request for proposal with the joint committee on government and finance. If the proposed request for proposal does not contain the changes proposed by the committee, the director of purchases shall submit with the final request for proposal a letter stating the reasons why such proposed changes were not adopted. The director of the purchasing division shall not release the final request for proposal until at least ten days after the date of submission of the final request for proposal to the joint committee on government and finance. If the committee makes no suggested changes to the proposed request for proposal or fails to report any suggested changes within sixty days of the submission of the proposed request for proposal to the committee, the director of the purchasing division may release the request for proposal.
(b) After awarding a contract for legal services where the amount of the fees paid to an attorney or firm of attorneys
reasonably may exceed two hundred thousand dollars the director of the purchasing division shall submit the contract to the joint committee on government and finance. Within thirty days after submission of the contract, the committee may hold a public hearing on the contract and shall issue a report to the director of the purchasing division. The report shall include any concerns of the committee.
(c) The provisions of this section shall not apply in any action in which the state of West Virginia or any state agency, officer or employee is a defendant and a contract for legal services is to be entered. The director of the purchasing division shall prepare a report each calendar quarter while such legal proceeding is in progress. The report shall include the case citation and the date upon which the action was filed. The director of the purchasing division shall submit the report to the joint committee on government and finance, the president of the Senate and the speaker of the House of Delegates.

(d) The director of the purchasing division shall prepare a detailed report at least once in each calendar quarter of each legal proceeding which has been completed and for which a contingency fee arrangement was entered. Such report shall disclose the hours worked on the case, the expenses incurred, the aggregate fee amount and a breakdown as to the hourly rate, based on hours worked divided into fee recovered, less expenses. The director
shall submit the report to the joint committee on government and finance, the president of the Senate and the speaker of the House of Delegates.
(e) Reasonable attorney fees to be paid by the state in an action where the attorney was hired by the state with a contingency fee agreement shall be approved by the appropriate circuit court judge after an evidentiary hearing and prior to final disposition of the case by the court. Any individual may provide information to the court and be heard before the court with regard to the reasonableness of attorney fees paid by the state or defendant under the contingency fee agreement. Compensation for reasonable attorney fees for services performed in an appeal of a judgment in any such action to the supreme court of appeals of this state shall be approved after an evidentiary hearing by the chief judge or by the presiding judge of the panel hearing the case. Compensation for reasonable attorney fees for services performed in an appeal of a judgment in any such action to the supreme court of appeals shall be approved after an evidentiary hearing by the justices of the court in which the appeal is pending. In determining the reasonableness of such compensation, the judges and justices shall consider the following:

(1) The time and labor required, the novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly;

(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the attorney;

(3) The fee customarily charged in the locality for similar legal services;

(4) The amount involved and the results obtained;

(5) The time limitations imposed by the client or by the circumstances;

(6) The nature and length of the professional relationship with the client;

(7) The experience, reputation and ability of the attorney or attorneys performing the services; and

(8) Whether the fee is fixed or contingent.



NOTE: The purpose of this bill is to enact the "Private Attorney Retention Act." Among the proposed provisions of the bill are the following: (1) Requiring the director of purchasing division to submit a proposal for hiring of attorneys to the joint committee on government and finance in certain situations; (2) authorizing the committee to conduct public hearings on proposals; (3) requiring the committee to issue a report to the director; (4) requiring the protection of evidentiary privileges of govermental clients; (5) requiring the director to submit a final request for a proposal under certain circumstances; (6) requiring submission of a legal services contract to the joint committee on government and finance after awarding of contract for legal services; (7) authorizing the committee to hold public hearings on contracts; (8) requiring the committee to issue reports on contracts; (9)providing the provisions of the article do not apply in certain actions; (10) requiring the director of the purchasing division to prepare and submit reports; (11) providing for the contents of certain reports by the director; (12) providing courts, before approving attorneys' fees, conduct an evidentiary hearing; (13) authorizing persons to provide information to the court; and (14) setting forth criteria for the court to consider in determining whether to award attorneys' fees.

[TYPE INFORMATION]This article is new; therefore, strike-throughs and underscoring have been omitted.