Section 287.059, Florida Statutes 2004
1287.059 Private attorney services.--
(1) For purposes of this section, the term "agency" or "state agency" includes state officers, departments, boards, commissions, divisions, bureaus, councils, and units of organization, however designated, of the executive branch of state government, community and junior colleges, and multicounty special districts exclusive of those created by interlocal agreement or which have elected governing boards.
(2) No agency shall contract for private attorney services without the prior written approval of the Attorney General, except that such written approval is not required for private attorney services:
(a) Procured by the Executive Office of the Governor, offices under the jurisdiction of the Financial Services Commission, or any department under the exclusive jurisdiction of a single Cabinet officer.
(b) Provided by legal services organizations to indigent clients.
(c) Necessary to represent the state in litigation involving the State Risk Management Trust Fund pursuant to part II of chapter 284.
(d) Procured by the university and college boards of trustees or the state universities and colleges.
(e) Procured by community and junior colleges and multicounty special districts.
(f) Procured by the Board of Trustees for the Florida School for the Deaf and the Blind.
(3) An agency requesting approval for the use of private attorney services shall first offer to contract with the Department of Legal Affairs for such attorney services at a cost pursuant to mutual agreement. The Attorney General shall decide on a case-by-case basis to accept or decline to provide such attorney services as staffing, expertise, or other legal or economic considerations warrant. If the Attorney General declines to provide the requested attorney services, the Attorney General's written approval shall include a statement that the private attorney services requested cannot be provided by the office of the Attorney General or that such private attorney services are cost-effective in the opinion of the Attorney General. The Attorney General shall not consider political affiliation in making such decision. The office of the Attorney General shall respond to the request of an agency for prior written approval within 10 working days after receiving such request. The Attorney General may request additional information necessary for evaluation of a request. The Attorney General shall respond to the request within 10 working days after receipt of the requested information. Those agencies exempt from written approval from the Attorney General, as described in paragraphs (2)(a)-(f), may contract with the Department of Legal Affairs for attorney services. The Attorney General shall determine on a case-by-case basis whether to provide such attorney services as staffing, expertise, or other legal considerations warrant. The Attorney General may adopt, by rule, a form on which agencies requesting written approval for private attorney services shall provide information concerning:
(a) The nature of the attorney services to be provided and the issues involved.
(b) The need for use of private attorneys, rather than agency staff attorneys, utilizing the criteria provided in subsection (9).
(c) The criteria by which the agency selected the private attorney or law firm it proposes to employ, utilizing the criteria provided in subsection (10).
(d) Competitive fees for similar attorney services.
(e) The agency's analysis estimating the number of hours for attorney services, the costs, the total contract amount, and, when appropriate, a risk or cost-benefit analysis.
(f) Which partners, associates, paralegals, research associates, or other personnel will be used, and how their time will be billed to the agency.
(g) Any other information which the Attorney General deems appropriate for the proper evaluation of the need for such private attorney services.
(4) When written approval has been received from the Attorney General, the general counsel for the agency shall review the form and legality of the contract for private attorney services and shall indicate his or her approval by signing the contract. After a contract is approved and signed by the general counsel, in order to effectuate that contract the agency head must sign the contract. The agency head shall also maintain custody of the contract.
(5) The agency head or a designee shall give written approval prior to contracting for private attorney services for all agencies exempt from written approval of the Attorney General as described in paragraphs (2)(a)-(f).
(6) The Attorney General shall, by rule, adopt a standard fee schedule for private attorney services using hourly rates or an alternative billing methodology. The Attorney General shall take into consideration the following factors:
(a) Type of controversy involved and complexity of the legal services needed.
(b) Geographic area where the attorney services are to be provided.
(c) Novelty of the legal questions involved.
(d) Amount of experience desired for the particular kind of attorney services to be provided.
(e) Other factors deemed appropriate by the Attorney General.
(f) The most cost-effective or appropriate billing methodology.
(7)(a) A contingency fee contract must be commercially reasonable. As used in this subsection, the term "commercially reasonable" means no more than the amount permissible pursuant to rule 4-1.5 of the rules regulating The Florida Bar and case law interpreting that rule.
(b) If the amount of the fee is in dispute, the counsel retained by the state shall participate in mandatory binding arbitration. Payment of all attorney's fees is subject to appropriation. Attorney's fees shall be forfeited if, during the pendency of the case, the counsel retained by the state takes a public position that is adverse to the state's litigation or settlement posture.
(8) All agencies, when contracting for private attorney services, must use the standard fee schedule for private attorney services as established pursuant to this section unless the head of the agency, or his or her designee, waives use of the schedule and sets forth the reasons for deviating from the schedule in writing to the Attorney General. Such waiver must demonstrate necessity based upon criteria for deviation from the schedule which the Attorney General shall establish by rule.
(9) The Attorney General shall develop guidelines that may be used by agencies to determine when it is necessary and appropriate to seek private attorney services in lieu of staff attorney services.
(10) Agencies are encouraged to use the following criteria when selecting outside firms for attorney services:
(a) The magnitude or complexity of the case.
(b) The firm's ratings and certifications.
(c) The firm's minority status.
(d) The firm's physical proximity to the case and the agency.
(e) The firm's prior experience with the agency.
(f) The firm's prior experience with similar cases or issues.
(g) The firm's billing methodology and proposed rate.
(h) The firm's current or past adversarial position, or conflict of interest, with the agency.
(i) The firm's willingness to use resources of the agency to minimize costs.
(11) The Attorney General shall develop a standard addendum to every contract for attorney services that must be used by all agencies, unless waived by the Attorney General, describing in detail what is expected of both the contracted private attorney and the contracting agency. The addendum must address the internal system of governance if multiple law firms are parties to the contract and must, at a minimum, require that each firm identify one member who is authorized to legally bind the firm.
(12) Contracts for attorney services shall be originally executed for 1 year only, except that multiyear contracts may be entered into provided they are subject to annual appropriations and annual written approval from the Attorney General as described in subsection (3). Any amendments to extend the contract period or increase the billing rate or overall contract amount shall be considered new contracts for purposes of the written approval process described in subsection (3).
(13) The office of the Attorney General shall periodically prepare and distribute to agencies a roster by geographic location of private attorneys under contract with agencies, their fees, and primary area of legal specialization.
(14) The office of the Attorney General is authorized to competitively bid and contract with one or more court reporting services, on a circuitwide basis, on behalf of all state agencies in accordance with s. 287.057(2). The office of the Attorney General shall develop requests for proposal for court reporter services in consultation with the Florida Court Reporters Association. All agencies shall utilize the contracts for court reporting services entered into by the office of the Attorney General where in force, unless otherwise ordered by a court or unless an agency has a contract for court reporting services executed prior to May 5, 1993.
(15) The Attorney General's office may, by rule, adopt standard fee schedules for court reporting services for each judicial circuit in consultation with the Florida Court Reporters Association. Agencies, when contracting for court reporting services, must use the standard fee schedule for court reporting services established pursuant to this section, provided no state contract is applicable or unless the head of the agency or his or her designee waives use of the schedule and sets forth the reasons for deviating from the schedule in writing to the Attorney General. Such waiver must demonstrate necessity based upon criteria for deviation from the schedule which the Attorney General shall establish by rule. Any proposed fee schedule under this section shall be submitted to the Governor, the Speaker of the House of Representatives, the President of the Senate, and the Chief Justice of the Florida Supreme Court at least 60 days prior to publication of the notice to adopt the rule.
(16) Each private attorney who is under contract to provide attorney services for the state or a state agency shall, from the inception of the contractual relationship until at least 4 years after the contract expires or terminates, maintain detailed current records, including documentation of all expenses, disbursements, charges, credits, underlying receipts and invoices, and other financial transactions that concern the provision of such attorney services. The private attorney shall make all such records available for inspection and copying upon request in accordance with chapter 119.
History.--s. 5, ch. 82-196; s. 2, ch. 84-158; s. 1, ch. 90-147; s. 19, ch. 90-268; s. 16, ch. 92-170; s. 9, ch. 93-161; s. 13, ch. 94-124; s. 870, ch. 95-148; ss. 10, 11, ch. 95-222; s. 54, ch. 99-13; s. 5, ch. 99-280; s. 19, ch. 2000-122; s. 4, ch. 2001-266; s. 18, ch. 2002-207; s. 333, ch. 2003-261.
1Note.--Section 1, ch. 92-37, provides that "[n]otwithstanding the provisions of chapter 39, Florida Statutes, to the contrary, the attorneys whose compensation was provided in the November 1989 Supplemental Appropriations Act and is continued in subsequent general appropriations acts shall provide legal representation in cases arising under sections 39.40-39.474, Florida Statutes." Provisions within chapter 39 were transferred to other locations by ch. 97-238, ch. 98-403, and ch. 2000-139. Some of the material within the cited range can be found at parts VI, VIII, and XI of ch. 39, as redesignated by ch. 98-403 and ch. 2000-139, and ch. 984, as redesignated by ch. 97-238.