Current through Bulletin 2024-18, September 15, 2024
(1) The Attorney General shall not enter into
a contract for outside counsel unless the requirements of this Rule
R105-1-10 are met throughout the
contract period and any extensions.
(2) The Attorney General shall review the
proposed fee arrangement to hire outside counsel to ensure that there is a
reasonable, good faith legal basis to pursue the litigation in the interest of
the citizens of the State.
(3) The
Attorney General shall retain oversight and control over the course and conduct
of the litigation or anticipated litigation.
(4) The Attorney General shall designate a
member of the Attorney General's Office to personally oversee the
litigation.
(5) The Attorney
General shall retain veto power over any decisions made by outside counsel, and
no lawsuit will be filed, or party added to or served with process in any
lawsuit, by outside counsel, without express written permission of the Attorney
General.
(6) The Attorney General
shall be apprised of, attend, and participate in all settlement offers or
conferences.
(7) Decisions
regarding settlement of the case shall be made by the Attorney General and not
the outside counsel, provided that the Attorney General may give outside
counsel a reasonable range of specific settlement authority in writing, within
which outside counsel is authorized to settle the case.
(8) Written Determination regarding using a
Contingency Fee Contracts. The Attorney General may not enter into a contingent
fee contract with outside counsel unless the Attorney General makes a written
determination that the contingent fee contract is cost-effective and in the
public interest. This written determination shall:
(a) be made before or within a reasonable
time after the Attorney General enters into a contingent fee contract;
and
(b) include specific findings
regarding:
(i) whether sufficient and
appropriate legal and financial resources exist in the Attorney General's
office to handle the legal matter that is the subject of the contingent fee
contract; and
(ii) the nature of
the legal matter, unless information conveyed in the findings would violate an
ethical responsibility of the Attorney General or a privilege held by the
state.
(9)
Contingency Fee Limit. The Attorney General may not enter into a contingent fee
contract with outside counsel that provides for outside counsel to receive a
contingent fee, exclusive of reasonable costs and expenses, that exceeds:
(a) 25% of the amount recovered, if the
amount recovered is no more than $10,000,000;
(b) 25% of the first $10,000,000 recovered,
plus 20% of the amount recovered that exceeds $10,000,000, if the amount
recovered is over $10,000,000 but no more than $15,000,000;
(c) 25% of the first $10,000,000 recovered,
plus 20% of the next $5,000,000 recovered, plus 15% of the amount recovered
that exceeds $15,000,000, if the amount recovered is over $15,000,000 but no
more than $20,000,000; and
(d) 25%
of the first $10,000,000 recovered, plus 20% of the next $5,000,000 recovered,
plus 15% of the next $5,000,000 recovered, plus 10% of the amount recovered
that exceeds $20,000,000, if the amount recovered is over $20,000,000;
or
(e) $50,000,000.
(10) Opt-out regarding Contingency
Fee Contracts.
(a) A provision of a contingent
fee contract that is inconsistent with a provision of this section is invalid
unless, before the contract is executed, the contingent fee contract provision
is approved by a majority of the Attorney General, state treasurer, and state
auditor.
(11) Exceptions
regarding Contingency Fee Contracts:
(a) A
contingent fee under a contingent fee contract may not be based on the
imposition or amount of a penalty or civil fine.
(b) A contingent fee under a contingent fee
contract may be paid only on amounts actually recovered by the state.
(c) Throughout the period covered by a
contingent fee contract, including any extension of the contingent fee
contract:
(i) outside counsel that is a party
to the contingent fee contract shall acknowledge that the Attorney General
retains complete control over the course and conduct of the contingent fee case
for which outside counsel provides legal services under the contingent fee
contract;
(ii) the Attorney General
with supervisory authority shall oversee any litigation involved in the
contingent fee case;
(iii) the
Attorney General retains final authority over any pleading or other document
that outside counsel submits to court;
(iv) an opposing party in a contingent fee
case may contact the Attorney General directly, without having to confer with
outside counsel;
(v) the Attorney
General with supervisory authority over the contingent fee case may attend all
settlement conferences; and
(vi)
the outside counsel shall acknowledge that final approval regarding settlement
of the contingent fee case is reserved exclusively to the discretion of the
Attorney General.
(d)
Nothing in Rule R105-1-10(11)
may be construed to limit the authority of the client regarding the course,
conduct, or settlement of the contingent fee case.
(12) Website Posting regarding Contingency
Fee Contracts. Within five business days after entering into a contingent fee
contract, the Attorney General shall post on the Attorney General's website:
(a) the contingent fee contract;
(b) the written determination under
R105-1-10(8)
relating to that contingent fee; and
(c) if applicable, any written determination
made under Rule R105-1-5(1)(d)
relating to that contingent fee contract.
(d) The Attorney General shall keep the
contingent fee contract and written determination posted on the Attorney
General's website throughout the term of the contingent fee contract.
(13) Contingency Fee Contract
Records. The outside counsel that enters into a contingent fee contract with
the Attorney General shall:
(a) from the time
the contingent fee contract is entered into until three years after the
contract expires, maintain detailed records relating to the legal services
provided by outside counsel under the contingent fee contract, including
documentation of all expenses, disbursements, charges, credits, underlying
receipts and invoices, and other financial records that relate to the legal
services provided by outside counsel; and
(b) maintain detailed contemporaneous time
records for the outside counsel's attorneys and paralegals working on the
contingent fee case and promptly provide the records to the Attorney General
upon request.
(14)
Exemption regarding Contingency Fee Contracts. Rule
R105-1-10(8) through
(13) as well as Rule
R105-1-11(3) do
not apply to:
(a) to a contingent fee contract
in existence before May 12, 2015, or to any renewal or modification of a
contingent fee contract in existence before that date;
(b) to a contingent fee contract with outside
counsel that the Attorney General hires to collect a debt that the Attorney
General is authorized by law to collect; and
(c) with respect to a contingent fee contract
with outside counsel in a securities class action in which the state is
appointed as lead plaintiff under Section 27(a)(3)(B)(i) of the Securities Act
of 1933 or Section 21D(a)(3)(B)(i) of the Securities Exchange Act of 1934 or in
which any state is a class representative, or in any other action in which the
state is participating with one or more other states:
(i) apply only with respect to the state's
share of any judgment, settlement amount, or common fund; and
(ii) do not apply to attorney fees awarded to
outside counsel for representing other members of a class certified under Rule
23 of the Federal Rules of Civil Procedure or applicable state class action
procedural rules.
(15) Notwithstanding any other provision of
this Rule R105-1-10, the solicitation for
outside counsel may provide a lower fee limitation and/or provide for weights
and scoring of the proposed fees in accordance with the Utah Procurement Code,
which will allow for a competitive process and may provide for fees below the
limitations set forth in this Rule.
