OK
Oklahoma Senate Bill SB984

Oklahoma 2022 Regular Session

Oklahoma Senate Bill SB984 Compare Versions

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4-An Act
5-ENROLLED SENATE
6-BILL NO. 984 By: David of the Senate
28+ENGROSSED HOUSE AMENDME NTS
29+ TO
30+ENGROSSED SENATE BILL NO . 984 By: David of the Senate
731
832 and
933
10- O’Donnell, Echols, Townley,
11-Lepak, McBride, Martinez,
12-Mize, McDugle, Burns, and
13-Grego of the House
34+ O’Donnell of the House
1435
1536
1637
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1839 An Act relating to legal representation; amend ing 74
19-O.S. 2021, Section 20i, which relates to contracting
40+O.S. 2011, Section 20i, which relates to contracting
41+for legal representation; clarifying types of
42+entities authorized for contracting; requiring
43+certain identification and fee s chedule; allowing
44+certain fee exception; specifying certain fee
45+limitations; requiring Attorney General to develop
46+standard clause including specific requirements for
47+certain contracts; requiring publication of certain
48+contracts and payments on Attorney General website
49+within specific time period; requiring maintenance of
50+certain records by private counsel for specified time
51+period; adding certain requirem ents for certain
52+Attorney General notification; specifying
53+requirements for certain contracts exceeding certain
54+cost; establishing procedures and requirements for
55+certain requests for proposal; requiring submission
56+of certain contract and related informatio n to
57+Legislative Oversight Committee under certain
58+circumstances; clarifying requirement for settlement
59+agreements; requiring submission of certain
60+settlement agreement to the Legislative Oversight
61+Committee; establishing exception to applicability of
62+provisions; requiring the Attorney General to submit
63+certain annual report; specifying required contents
64+of certain report; and providing an effective date.
65+
66+
67+
68+AUTHOR: Add the following House Coauthor s: Echols, Townley,
69+Lepak, McBride, Martinez, Mize, McDugle, B urns, and
70+Grego
71+
72+AMENDMENT NO. 1. Page 12, line 9 1/2, insert the following language
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100+"S. The provisions of subsections B through R of this section
101+shall not apply to any agency that invests funds on behalf of its
102+beneficiaries and, as part of its fiduciary duty, retains one or
103+more private attorneys or law firms to pursue individual, derivative
104+or class litigation concerning its investments or assets. "
105+
106+AMENDMENT NO. 2. Page 12, line 9 1/2, insert the following language
107+
108+"S. The provisions of this sec tion shall not apply to any
109+entity exempted from Article I of the Administrative Procedures Act
110+pursuant to paragraphs 6 and 7 of subsection A of Section 250.4 of
111+Title 75 of the Oklahoma Statutes ."
112+
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114+Page 12, line 10, delete "2021" and insert "2022"
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116+and amend title to conform
117+
118+Passed the House of Representatives the 27th day of April, 2022.
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124+Presiding Officer of the House of
125+ Representatives
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128+Passed the Senate the ____ day of _______ ___, 2022.
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134+Presiding Officer of the Senate
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162+ENGROSSED SENATE
163+BILL NO. 984 By: David of the Senate
164+
165+ and
166+
167+ O’Donnell of the House
168+
169+
170+
171+
172+An Act relating to legal representation; amend ing 74
173+O.S. 2011, Section 20i, which relates to contracting
20174 for legal representation; clarifying types of
21175 entities authorized for contracting; requiring
22176 certain identification and fee s chedule; allowing
23177 certain fee exception; specifying certain fee
24178 limitations; requiring Attorney General to develop
25179 standard clause including specific requirements for
26180 certain contracts; requiring publication of certain
27181 contracts and payments on Attorney General website
28182 within specific time period; requiring maintenance of
29183 certain records by private counsel for specified time
30184 period; adding certain requirem ents for certain
31185 Attorney General notification; specifying
32186 requirements for certain contracts exceeding certain
33187 cost; establishing procedures and requirements for
34188 certain requests for proposal; requiring submission
35189 of certain contract and related informatio n to
36190 Legislative Oversight Committee under certain
37191 circumstances; clarifying requirement for settlement
38192 agreements; requiring submission of certain
39193 settlement agreement to the Legislative Oversight
40194 Committee; establishing exception to applicability of
41195 provisions; requiring the Attorney General to submit
42196 certain annual report; specifying required contents
43197 of certain report; and providing an effective date.
44198
45199
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48-ENR. S. B. NO. 984 Page 2
202+BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
203+SECTION 1. AMENDATORY 74 O.S. 2011, Section 20i, is
204+amended to read as follows:
49205
50-SUBJECT: Contracts for legal representation
51-
52-BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
53-
54-SECTION 1. AMENDATORY 74 O.S. 2021, Section 20i, is
55-amended to read as follows:
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56230
57231 Section 20i. A. An agency or official of the executive branch
58232 may obtain legal representation by one or mor e attorneys by means of
59233 one of the following:
60-
61234 1. Employing an attorney as such if otherwise authorized by
62235 law;
63-
64236 2. Contracting with the Office of the Attorney General; or
65-
66237 3. If the Attorney General is unable to represent the agency,
67238 or official due to a conflict of interest, or the Office of the
68239 Attorney General is unable or lacks t he personnel or expertise to
69240 provide the specific representation required by such agency or
70241 official, contracting with a private attorney or attorneys pursuant
71242 to this section.
72-
73243 B. When entering into a contract for legal representation by
74244 one or more private attorneys or law firms, an agency or official of
75245 the executive branch shall select an attorney or attorneys or a law
76246 firm or law firms from a list of attorneys and firms maintained by
77247 the Attorney General. An agency may contract for legal
78248 representation with one or more attorneys who are not on the list
79249 only when there is no attorney or firm on the list capable of
80250 providing the specific representation and only with the appro val of
81251 the Attorney General. The list shall include any attorney or firm
82252 who desires to furnish services to an agency or official of the
83253 executive branch and who has filed a schedule of fees for services
84254 with and on a form approved by the Attorney General . The list of
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85281 attorneys and firms desiring to furnish services and a schedule of
86282 fees for each attorney and firm shall be maintained and made
87283 available to the public.
88-
89284 C. An agency or official may agree to deviate from the schedule
90285 of fees only with the approval of the Attorney General and if the
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92-ENR. S. B. NO. 984 Page 3
93286 new schedule of fees would not violate the fee schedules set forth
94287 in subsections D and E of this section.
95-
96288 C. D. An agency or official of the executive branch s hall not
97289 enter into a contingency fee contract that provides for the private
98290 attorney or firm to receive an aggregate contin gency fee that
99291 exceeds:
100-
101292 1. Twenty-five percent (25%) of that portion of any amount
102293 recovered that is Ten Million Dollars ($10,000,000.00) or less;
103-
104294 2. Twenty percent (20%) of that portion of any amount recovered
105295 that is more than Ten Million Dollars ($10, 000,000.00) but less than
106296 or equal to Fifteen Million Dollars ($15,000,000.00);
107-
108297 3. Fifteen percent (15%) of that portion of any amount
109298 recovered that is more than Fifteen Million Dollars ($15,000,000.00)
110299 but less than or equal to Twenty Million Dollars ($ 20,000,000.00);
111-
112300 4. Ten percent (10%) of that portion of any amount recovered
113301 that is more than Twenty Million Dollars ($20,000,000.00) but less
114302 than or equal to Twenty -five Million Dollars ($25,000,000.00); and
115-
116303 5. Five percent (5%) of that portion of any amount recovered
117304 that is more than Twenty-five Million Dollars ($25,000,000.00).
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118330
119331 E. Notwithstanding subsection D of this section, the total fee
120332 payable to all retained priv ate attorneys in any contingency fee
121333 contract shall not exceed Fifty Million Dollars ($50,000,000.00),
122334 exclusive of any costs and expenses provided by the contract and
123335 actually incurred by the retained private attorneys, regardless of
124336 the number of actions or proceedings or the number of retained
125337 private attorneys involved in the matter .
126-
127338 F. The Attorney General shall develop a standard clause for
128339 inclusion in every contract for contingent fee attorney services
129340 that shall be used in all cases, describing in detail wh at is
130341 expected of both the contracted private attorney and the state
131342 including, but not limited to, the requirements as provided in this
132343 subsection. The state shall not enter into a contract for
133344 contingency fee attorney services t hat does not incorporate such
134345 requirements:
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137-
138346 1. The government attorneys shall retain complete control over
139347 the course and conduct of the case;
140-
141348 2. A government attorney with supervisory authority shall be
142349 personally involved in overs ight of the case;
143-
144350 3. The government attorneys shall retain veto power over any
145351 decision made by outside counsel related to the case;
146-
147352 4. Any defendant in the case may contact the lead government
148353 attorneys directly, without having to confer with outside counsel;
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150380 5. A government attorney with superviso ry authority for the
151381 case shall attend all settlement conferences; and
152-
153382 6. Decisions regarding settlement of the case shall be reserved
154383 exclusively to the discretion of the government attorneys and the
155384 state.
156-
157385 G. Copies of any executed contingency fee cont ract with the
158386 private attorney shall be posted on the Attorney General ’s website
159387 for public inspection within five (5) business days after the date
160388 the contract is executed and shall remain posted on the website for
161389 the duration of the contingency fee cont ract including any
162390 extensions or amendments to the contract. Any payment of
163391 contingency fees shall be posted on the Attorney General’s website
164392 within fifteen (15) days after the payment of the contingency fees
165393 to the private attorney or law firm and shall remain posted on the
166394 website for at least three hundred sixty-five (365) days after the
167395 payment is made.
168-
169396 H. Any private attorney or law firm under contract to provide
170397 services to the state on a contingency fee basis shall from the
171398 inception of the contract unt il at least four (4) years after the
172399 contract expires or is terminated, maintain de tailed current records
173400 including documentation of all expenses, disbursements, charges,
174401 credits, underlying receipts and invoices and other financial
175402 transactions related to the attorney services. The private attorney
176403 or law firm shall make all such records available for inspection and
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177430 copying upon request of the Attorney General . In addition, the
178431 private attorney or law firm shall maintain detailed contemporaneous
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180-ENR. S. B. NO. 984 Page 5
181432 time records for the attorneys and paralegals work ing on the matter
182433 in increments of no greater than one-tenth (1/10) of an hour and
183434 shall promptly provide such records to the Attorney General upon
184435 request.
185-
186436 I. Before entering into a contract for legal representat ion by
187437 one or more private attorneys, an agency or official of the
188438 executive branch shall fur nish a copy of the proposed contract to
189439 the Attorney General and , if not fully described in the contrac t,
190440 notify the Attorney General of the following:
191-
192441 1. The nature and scope of the representation including, but
193442 not limited to, a description of any pendi ng or anticipated
194443 litigation or of the transaction requiring repre sentation;
195-
196444 2. The reason or reasons for not obtaining the representation
197445 from an attorney employ ed by the agency or official, if an attorney
198446 is employed by the agency or official;
199-
200447 3. The reason or reasons for not obtaining the representation
201448 from the Attorney General by contract;
202-
203449 4. The anticipated cost of the representation including the
204450 following:
205-
206451 a. the basis for or method of calculation of the fee
207452 including, when applicable, the hourly rate for each
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208479 attorney, paralegal, legal assistant, or other pers on
209480 who will perform services under th e contract, and
210-
211481 b. the basis for and method of calculation o f any
212482 expenses which will be reimbursed by the agency or
213483 official under the contract; and
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215484 5. An estimate of the anticipated duration of the contract;
216-
217485 6. The past or present relationship, if any, between such
218486 attorney, law firm or any partner or other pri ncipal in such law
219487 firm and the state agency or state agent proposing to enter into the
220488 contract;
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224489 7. If the contract contemplates that all or part of the fee is
225490 contingent on the outcome of the legal proceeding, the reasons the
226491 contingent fee arrangement is believed to be in the state’s interest
227492 and any efforts undertaken to obtain private cou nsel on a
228493 noncontingent fee basis; and
229-
230494 8. The justification for the determination that the selection
231495 of a contract for legal representation by one or more private
232496 attorneys or firms was made based on the ability of the private
233497 attorney or firm to provide the most economical and most competent
234498 service which furthers the bes t interest of the state.
235-
236499 J. After the approval of the contract by the Attorney General
237500 for legal representation by one or more private att orneys or law
238501 firms, the Attorney General shall make available to the public on
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239528 the Attorney General’s website the information required pursuant to
240529 paragraphs 1 through 8 of subsection I of this section.
241-
242530 D. K. 1. Before entering into a contract for legal
243531 representation by one or more private attorneys or firms where the
244532 agency has reason to believe that the case, transaction or mat ter
245533 will equal or exceed Twenty Thousand Dollars ($20,000.00) or after
246534 employment when it becomes apparent that the case, tran saction or
247535 matter will equal or exceeds Twenty Thousand Dollars ($20,000.00),
248536 an agency or official of the executive branch shall obtain the
249537 approval of the Attorney General when the total cost , including fees
250538 and expenses, of all contracts relating to the same case,
251539 transaction, or matter will equal or exceed Twenty Thousand Dollars
252540 ($20,000.00).
253-
254541 2. Before entering into a contract for legal representation by
255542 one or more private attorneys or firms to initiate a legal action on
256543 behalf of the state where the agency has reason to believe that the
257544 total cost of the case, transaction or matter including fees and
258545 expenses will equal or exceed One Million Dollars ( $1,000,000.00),
259546 an agency or official of the executive bran ch shall initiate a
260547 request for proposal from at least three qualified private attorneys
261548 or firms, when possible, engaged in providing such services. Notice
262549 of the request for proposal shall be published on the Attorney
263550 General’s website. The request for proposal shall solicit a
264551 billable hourly rate, regardless of whether a contingency fee is
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265578 ultimately agreed upon, and shall specify the importance of pri ce,
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268579 quality, ability and experience. The selection of a contract for
269580 legal representation by one or more private attorneys or firms shall
270581 be made using the criteria established in the request for proposal
271582 and shall be based on the response to the request which is the most
272583 economical and provides the most competent service which furthers
273584 the best interests of the state. Most economical and most competent
274585 shall not be construed to mean the least exp ensive proposal.
275-
276586 3. Any amendment, modification, or extension of a contract
277587 which, had it been a part of the original contract would have
278588 required approval by t he Attorney General, shall also require
279589 approval by the Attorney General.
280-
281590 L. After entering into a contract for legal representation by
282591 one or more private attorneys or firms where the agency has reason
283592 to believe that the case, transaction or matter will equal or exceed
284593 One Million Dollars ($1,000,000.00), an agency or official of the
285594 executive branch shall submit a copy of the contract to the
286595 Legislative Oversight Committee overseeing the operations of the
287596 Legislative Office of Fiscal Transparency (LOFT) along with the
288597 following:
289-
290598 1. A description of the litigation or of the transaction
291599 requiring representation;
292-
293600 2. The reason or reasons for not obtaining the representation
294601 from an attorney employed by the agency or official ;
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296628 3. The justification for sel ecting an attorney or firm
297629 contracted to represent the state; and
298-
299630 4. An estimate of the antici pated duration of the contract.
300-
301631 M. A settlement agreement shall not contemplate the ultimate
302632 use and destination of recovered funds unless done in accordance
303633 with paragraphs 11 and 12 of Sec tion 18b of this title.
304-
305634 N. Within ten (10) days of an agency or official of the
306635 executive branch entering into a settlement agreement where a
307636 private attorney or firm was hired on a contingency fee contra ct and
308637 the settlement was equal to or greater than One Million Dollars
309638 ($1,000,000.00), the agency or official of the executive branch
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312639 shall present the settlement agreement to the Legislative Oversight
313640 Committee with oversight of the operations of the Leg islative Office
314641 of Fiscal Transparency (LOFT), unless otherwise postponed by LOFT.
315-
316642 E. O. When an agency or official of the executive branch enters
317643 into a contract for professional leg al services pursuant to this
318644 section, the agency shall also comply with the applicable provis ions
319645 of Section 85.41 of Title 74 of the Oklahoma Statutes this title.
320-
321646 F. P. The provisions of this section shall not apply to the
322647 Oklahoma Indigent Defense Syste m created pursuant to Section 1355 et
323648 seq. of Title 22 of the Oklahoma S tatutes.
324-
325649 G. The Attorney General shall, on or before February 1 of each
326650 year, make a written report on legal representation obtained
327651 pursuant to paragraphs 2 and 3 of subsection A of this section. The
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328678 report shall include a brief description of each contra ct, the
329679 circumstances necessitating each contract, and the amount paid or to
330680 be paid under each contract. The report shall be filed with the
331681 Governor, the President Pro Tempore of the Senate, the Speaker of
332682 the House of Representatives, the Chair of the A ppropriations and
333683 Budget Committee of the House of Representatives, and the Chair of
334-the Appropriations Committee of the Senate
335-
684+the Appropriations Committee of the Senate.
336685 Q. Upon request of an agency or official of the executive
337686 branch, the Governor, the President Pro Tempore of the Senate and
338687 the Speaker of the House of Representatives may exempt a legal
339688 matter from the requirements of this section if an exempti on is
340689 deemed to be in the best interest of the state. Such exemption
341690 shall be issued at t heir discretion, in writ ing and by unanimous
342691 consent, and shall be submitted to LOFT.
343-
344692 R. By February 1 of each year, the Attorney General shall
345693 submit a report to t he Governor, the President Pro Tempore of the
346694 Senate, the Speaker of the House of Re presentatives, the Chair of
347695 the Appropriations and Budget Committee of th e House of
348696 Representatives and the Chair of the Appropriations Committee of the
349697 Senate, that describes the use of contracts with private attorneys
350698 or law firms in the preceding calendar y ear. At a minimum, the
351699 report shall identify all new contracts enter ed into during the
352700 calendar year being reported and all previously executed contracts
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355727 that remain current during any part of the calendar year. For each
356728 contract, the report shall contain:
357-
358729 1. The name of the private attorney with whom the agency has
359730 contracted including the name of the attorney’s law firm;
360-
361731 2. The nature and status of the legal matter;
362-
363732 3. The name of the parties to the legal matter;
364-
365733 4. The amount of any recovery;
366-
367734 5. The amount of any hourly rate; and
368-
369735 6. The amount of any contingency fee paid, if applicable.
370-
371-S. The provisions of subsections B through R of this section
372-shall not apply to any agency that invests funds on behalf of its
373-beneficiaries and, as part of its fiduciary duty, retains one or
374-more private attorneys or law firms to pursue individual, derivative
375-or class litigation concerning its investments or assets.
376-
377-T. The provisions of this section shall not apply to any entity
378-exempted from Article I of the Administrat ive Procedures Act
379-pursuant to paragraphs 6 and 7 of subsection A of Section 250.4 of
380-Title 75 of the Oklahoma Statutes .
381-
382-SECTION 2. This act shall become effective November 1, 2022.
383-
384-
385-ENR. S. B. NO. 984 Page 10
386-Passed the Senate the 16th day of May, 2022.
736+SECTION 2. This act shall become effective November 1, 2021.
737+Passed the Senate the 9th day of March, 2021.
387738
388739
389740
390741 Presiding Officer of the Senate
391742
392743
393-Passed the House of Representatives the 27th day of April, 2022.
744+Passed the House of Representatives the ____ day of __________,
745+2021.
394746
395747
396748
397749 Presiding Officer of the House
398750 of Representatives
399751
400-OFFICE OF THE GOVERNOR
401-Received by the Office of the Governor this _______ _____________
402-day of ___________________, 20_______, at _______ o'clock _______ M.
403-By: _______________________________ __
404-Approved by the Governor of the State of Oklahoma this _____ ____
405-day of _________________ __, 20_______, at _______ o'clock _______ M.
406752
407- ______________________________ ___
408- Governor of the State of Oklahoma
409-
410-
411-OFFICE OF THE SECRETARY OF STATE
412-Received by the Office of the Secretary of State this _______ ___
413-day of __________________, 20 _______, at _______ o'clock _______ M.
414-By: _______________________________ __