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EXPLANATION-Matter enclosed in bold-faced brackets [thus] in this bill is not enacted
and is intended to be omitted in the law.
SECOND REGULAR SESSION
SENATE BILL NO. 1413
103RD GENERAL ASSEMBLY
INTRODUCED BY SENATOR SCHROER.
5890S.01I KRISTINA MARTIN, Secretary
AN ACT
To repeal section 34.378, RSMo, and to enact in lieu thereof one new section relating to
contingency fee contracts with private attorneys.
Be it enacted by the General Assembly of the State of Missouri, as follows:
Section A. Section 34.378, RSMo, is repealed and one new 1
section enacted in lieu thereof, to be known as section 34.378, 2
to read as follows:3
34.378. 1. The state shall not enter into a 1
contingency fee contract with a private attorney unless the 2
attorney general makes a written determination prior to 3
entering into such a contract that contingency fee 4
representation is both cost effective and in the public 5
interest. Any written determination shall include specific 6
findings for each of the following factors: 7
(1) Whether there exists sufficient and appropriate 8
legal and financial resources within the attorney general's 9
office to handle the matter; 10
(2) The time and labor required; the novelty, 11
complexity, and difficulty of the questions involved; and 12
the skill requisite to perform the attorney services 13
properly; 14
(3) The geographic area where the attorney services 15
are to be provided; and 16
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(4) The amount of experience desired for the 17
particular kind of attorney services to be provided and the 18
nature of the private attorney's experience with similar 19
issues or cases. 20
2. If the attorney general makes the determination 21
described in subsection 1 of this section, the attorney 22
general shall request written proposals from private 23
attorneys to represent the state, unless the attorney 24
general determines that requesting proposals is not feasible 25
under the circumstances and sets forth the basis for this 26
determination in writing. If a request for proposals is 27
issued, the attorney general shall choose the lowest and 28
best bid or request that the office of administration 29
establish an independent panel to evaluate the proposals and 30
choose the lowest and best bid. 31
3. The state shall not enter into a contract for 32
contingency fee attorney services unless the following 33
requirements are met throughout the contract period and any 34
extensions to the contract: 35
(1) The government attorneys shall retain complete 36
control over the course and conduct of the case; 37
(2) A government attorney with supervisory authority 38
shall oversee the litigation; 39
(3) The government attorneys shall retain veto power 40
over any decisions made by outside counsel; 41
(4) A government attorney with supervisory authority 42
for the case shall attend all settlement conferences; and 43
(5) Decisions regarding settlement of the case shall 44
be reserved exclusively to the discretion of the attorney 45
general. 46
4. The attorney general shall develop a standard 47
addendum to every contract for contingent fee attorney 48
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services that shall be used in all cases, describing in 49
detail what is expected of both the contracted private 50
attorney and the state, including, without limitation, the 51
requirements listed in subsection 3 of this section. 52
5. Copies of any executed contingency fee contract and 53
the attorney general's written determination to enter into a 54
contingency fee contract with the private attorney shall be 55
posted on the attorney general's website for public 56
inspection within five business days after the date the 57
contract is executed and shall remain posted on the website 58
for the duration of the contingency fee contract, including 59
any extensions or amendments to the contract. Any payment 60
of contingency fees shall be posted on the attorney 61
general's website within fifteen days after the payment of 62
such contingency fees to the private attorney and shall 63
remain posted on the website for at least three hundred 64
sixty-five days. 65
6. Any private attorney under contract to provide 66
services to the state on a contingency fee basis shall, from 67
the inception of the contract until at least four years 68
after the contract expires or is terminated, maintain 69
detailed current records, including documentation of all 70
expenses, disbursements, charges, credits, underlying 71
receipts and invoices, and other financial transactions that 72
concern the provision of such attorney services. The 73
private attorney shall maintain detailed contemporaneous 74
time records for the attorneys and paralegals working on the 75
matter in increments of no greater than one-tenth of an hour 76
and shall promptly provide these records to the attorney 77
general, upon request. Any request under chapter 610 for 78
inspection and copying of such records shall be served upon 79
and responded to by the attorney general's office. 80
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7. [Except as otherwise provided in subsection 8 of 81
this section, a retained private attorney shall not be 82
entitled to a fee, exclusive of any costs and expenses 83
described in subsection 8 of this section, of more than: 84
(1) Fifteen percent of that portion of any amount 85
recovered that is ten million dollars or less; 86
(2) Ten percent of that portion of any amount 87
recovered that is more than ten million dollars but less 88
than or equal to fifteen million dollars; 89
(3) Five percent of that portion of any amount 90
recovered that is more than fifteen million dollars but less 91
than or equal to twenty million dollars; and 92
(4) Two percent of that portion of any amount 93
recovered that is more than twenty million dollars. 94
8. The total fee payable to all retained private 95
attorneys in any matter that is the subject of a contingency 96
fee contract shall not exceed ten million dollars, exclusive 97
of any costs and expenses provided by the contract and 98
actually incurred by the retained private attorneys, 99
regardless of the number of actions or proceedings or the 100
number of retained private attorneys involved in the matter. 101
9. A contingency fee: 102
(1) Shall be payable only from moneys that are 103
actually received under a judgment or settlement agreement; 104
and 105
(2) Shall not be based on any amount attributable to a 106
fine or civil penalty. 107
10. As used in this section, "amount recovered" does 108
not include any moneys paid as costs. 109
11.] By February first of each year, the attorney 110
general shall submit a report to the president pro tem of 111
the senate and the speaker of the house of representatives 112
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describing the use of contingency fee contracts with private 113
attorneys in the preceding calendar year. At a minimum, the 114
report shall: 115
(1) Identify all new contingency fee contracts entered 116
into during the year and all previously executed contingency 117
fee contracts that remain current during any part of the 118
year, and for each contract describe: 119
(a) The name of the private attorney with whom the 120
department has contracted, including the name of the 121
attorney's law firm; 122
(b) The nature and status of the legal matter; 123
(c) The name of the parties to the legal matter; 124
(d) The amount of any recovery; and 125
(e) The amount of any contingency fee paid; 126
(2) Include copies of any written determinations made 127
under subsections 1 and 2 of this section. 128
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