R105-1. Attorney General's Selection of Outside Counsel, Expert Witnesses and Other Litigation Support Services, R105. Attorney General, Administration, Utah Administrative Code

Utah Administrative Code (Current through November 1, 2019)

R105-1. Attorney General's Selection of Outside Counsel, Expert Witnesses and Other Litigation Support Services

R105-1-1. Purpose and Authority

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(1) The purpose of this rule is to provide the requirements for procurements that are managed by the Attorney General, including the hiring of Outside Counsel, expert witnesses, and litigation support services.

(2) This rule is adopted pursuant to authority granted by the Utah Procurement Code and Section 67-5-32(1)(a), including authority to manage procurement of procurement items directly or by delegation of the Chief Procurement Officer of the Division of Purchasing of the Department of Administrative Services.

(3) The Attorney General may procure any procurement item and exercise any action authorized by the Procurement Code and this Rule.

R105-1-2. Definitions

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Terms in this Rule R105-1 shall be as defined in Title 63G, Chapter 6a, Utah Procurement Code. The definitions in Rule R33-1 also apply to this Rule R105-1, except in case of conflict, the definitions in this Rule R105-1 shall control. Additional definitions are provided below.

(1) "Agency" is as defined in Section 67-5-3.

(2) "Attorney General" means the Attorney General of the State of Utah, or the Attorney General's designee.

(3) "Contingent fee case" means a legal matter for which legal services are provided under a contingent fee contract.

(4) "Contingent fee contract" means a contract for legal services under which the compensation for legal services is a percentage of the amount recovered in the legal matter for which the legal services are provided.

(5) "Expert witness" means a person whose knowledge, skill, experience, training or education in a scientific, technical, or other specialized area, would enable the person to give testimony under the Utah Rules of Evidence, Rule 702.

(6) "Legal matter" means a legal issue or administrative or judicial proceeding within the scope of the attorney general's authority.

(7) "Litigation Support Services" includes goods, services, software, or technology.

(8) "Outside Counsel" means an attorney or attorneys who are not, or a law firm whose attorneys are not, employed by the Attorney General's office, pursuant to Section 67-5-7 et seq., which the Attorney General hires, pursuant to Section 67-5-5, to represent, provide legal advice, or counsel to an agency of the State. "Outside Counsel" may or may not be designated as "Special Assistant Attorney General", as the Attorney General determines.

(9) "Procurement item" or "Procurement items" is as defined in Section 63G-6a-103.

(10) "Securities class action" means an action brought as a class action alleging a violation of federal securities law, including a violation of the Securities Act of 1933, 15 U.S.C. Sec. 77a et seq., or the Securities Exchange Act of 1934, 15 U.S.C. Sec. 78a et seq.

(11) "Small purchase" means a purchase under Rule R105-1-6.

(12) "Sole source" means a determination by the Attorney General, in writing, that the sole source requirements of the Utah Procurement Code and this Rule have been met.

(13) "State" means the State of Utah.

R105-1-3. General Process

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(1) This rule applies to the procurement and appointment of Outside Counsel, expert witnesses, litigation support services, litigation related consultants, as well as management software and services by the Attorney General.

(2) In order to properly fulfill the responsibilities of the Office, the procurement of Outside Counsel, expert witnesses, litigation support services, litigation related consultants, and management software and services may require that public notice of a particular procurement not be provided. Public notice of a procurement may only be waived in the event of an emergency procurement or as authorized by the Procurement Code.

(3) The Attorney General may select Outside Counsel, expert witnesses, professional litigation support services, litigation related consultants, as well as management software and services pursuant to any authorized process under the Utah Procurement Code. In any such selection process, it may be specified that the Outside Counsel is responsible for providing the expert witnesses or other litigation goods and services through the selection process for Outside Counsel and pursuant to the contract provisions with the Attorney General.

(4) The Attorney General shall comply with the Utah Procurement Code.The Attorney General shall comply with Rule R33 only when necessary to comply with Utah Code, except when Rule R33 is in conflict with or preempted by this Rule R105-1.

(5) The Attorney General may, in a multistate case involving other states as parties aligned with Utah, elect to enter into a fee sharing agreement in which each state contributes to a litigation fund that is used to purchase expert witnesses and/or other litigation support services including litigation related consultants, as well as management software and services, or through a similar group procurement agreement. The agreement shall be treated collectively as a sole source procurement of all goods and services purchased under the terms of the agreement.

(6) The Attorney General may, in a multistate case involving other states as parties aligned with Utah, select Outside Counsel jointly with some or all of the other states as a sole source procurement.

(7) The Attorney General's office shall ensure that the procurement of outside counsel is supported by a determination by the Attorney General that the procurement is in the best interests of the state, in light of available resources of the Attorney General's office.

(8) The Attorney General's office shall provide for the fair and equitable treatment of all potential providers of outside counsel, expert witnesses, and other litigation support services including, litigation related consultants, as well as management software and services consistent with the limitations and procedures set forth in this Rule R105-1.

(9) The Attorney General's office shall ensure that fees for outside counsel, whether based on an hourly rate, contingency fee, or other arrangement, are reasonable and do not exceed industry standards.

(10) The procurement and requirements regarding a Contingency Fee Contract must meet the requirements of this Rule R105-1 and the applicable provisions of the Utah Code.

R105-1-4. Available Procurement Processes

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Prior to any procurement for legal services, the Attorney General shall determine which process under the Utah Procurement Code shall be used.

R105-1-5. Request for Proposals Process

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(1) The Request for Proposals shall contain, in addition to the requirements of Rule R33-7-102, at a minimum, the following information:

(a) A description of the project.

(b) Fee arrangements.

(c) The persons or entities being sought in the procurement, including whether an individual person, firm or association of firms may respond.

(d) The qualification criteria and the relative importance of the criteria. The Attorney General shall request qualifications from outside counsel being considered to provide services under a contingent fee contract unless the Attorney General:

(i) determines that requesting qualifications is not feasible under the circumstances; and

(ii) sets forth the basis for this determination in writing.

(e) Examples of criteria include:

(i) Identification by name and experience of the proposed service provider(s);

(ii) A description of the duties and responsibilities of each person providing the service; and

(iii) The ability of the persons providing the service to meet the needs of the project, including the consideration of any association with other persons, expert witnesses or firms;

(f) The Contractual Requirements, which may be accomplished by including a copy of the contract.

(g) A request for a conflicts analysis, including potential conflicts of interest or other related matters concerning the offeror's ability to ethically perform the requested services.

(2) In any selection process for outside counsel, it may be specified that the outside counsel is responsible for providing the expert witnesses or other litigation goods and services including litigation related consultants, as well as management software and services through the outside counsel's selection process and pursuant to the contract provisions with the Attorney General.

(3) Minimum scores for any of the criteria may be established.

R105-1-6. Small Purchases

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(1) The maximum thresholds for small purchases shall be as described in this Rule R105-1-6.

(2) For Outside Counsel, litigation related consultants, management software and services, as well as expert witnesses, the small purchase maximum threshold is $250,000 per contract. A written justification statement shall be filed explaining the reason(s) for selection of the contractor.

(3) For the selection of litigation support services that are not included under Rule R105-1-6(2), including but not limited to court reporting, litigation related copying and printing services, the small purchase maximum threshold is $50,000 per contract. For a purchase of litigation support services that are not included under Rule R105-1-6(2) between $2,500 and $50,000, a minimum of two quotes shall be obtained or there shall be developed a rotation system of qualified persons or firms that meet the qualifications for the service. For any purchase of litigation support services that are not included under Rule R105-1-6(2) of $2500 or less, a direct award may be made.

(4) Under Section 63G-6a-506(3), a threshold stated in this Rule may be exceeded if the Attorney General or a person specifically designated in writing by the Attorney General gives written authorization to exceed the threshold that includes the reasons for exceeding the threshold.

R105-1-7. Sole Source

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Unless the Attorney General determines that a publication of a sole source shall be published, sole sourced procurement items need not be published regardless of cost.

R105-1-8. Emergency Procurements

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(1) An emergency procurement may only be used when an emergency exists as described in, and in compliance with, Section 63G-6a-803.

(2) Emergency procurements are limited to those necessary to mitigate the emergency.

R105-1-9. Confidentiality of Procurement Records

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(1) The Attorney General shall comply with Title 63G, Chapter 2, Governmental Records Access and Management Act (GRAMA).

(2) Pricing may not be classified as protected and is considered public information.

(3) An entire response to a solicitation may not be designated as "PROTECTED", "CONFIDENTIAL" or "PROPRIETARY" and shall be considered non-responsive unless the vendor removes the designation.

(4) Publicizing Awards.

(a) In addition to the requirements of Section 63G-6a-709.5, the following shall be disclosed after receipt of a GRAMA request and applicable fees:

(i) the executed contract(s) and the successful proposal(s), except for those portions that are not Public;

(ii) unsuccessful proposals, except for those portions that are not Public;

(iii) the rankings of the proposals;

(iv) the names of the members of any evaluation committee;

(v) the final scores used by the evaluation committee to make the selection, except that the names of the individual scorers shall not be associated with their individual scores or rankings; and

(vi) the written justification statement supporting the selection, except for those portions that are not Public.

(b) After due consideration and public input, the following has been determined by the Procurement Policy Board and the Attorney General's Office to impair governmental procurement proceedings or give an unfair advantage to any person proposing to enter into a contract or agreement with a governmental entity, and will not be disclosed by the Attorney General's Office:

(i) the names of individual scorers/evaluators in relation to their individual scores or rankings;

(ii) any individual scorer's/evaluator's notes, drafts, and working documents;

(iii) non-public financial statements; and

(iv) past performance and reference information which is not provided by the vendor and which is obtained as a result of the efforts of the Attorney General's Office. To the extent such past performance or reference information is included in the written justification statement, the justification statement is still subject to public disclosure.

(c) In regard to an Invitation for bids issued by the Attorney General's Office, the Attorney General's Office shall, on the day on which the award of a contract is announced, make available to each vendor and to the public, a notice that includes:

(i) the name of the vendor to which the contract is awarded and the price(s) of the procurement item(s); and

(ii) the names and the prices of each vendor to which the contract is not awarded.

R105-1-10. Special Provisions regarding Procurement of Outside Counsel

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(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.

(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

(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.

R105-1-11. Transparency in Contingency Fee Contracts with Outside Counsel

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(1) Except as otherwise provided by GRAMA, applicable law, Rules of Professional Conduct or this Rule, a copy of the executed contract with outside counsel shall be made available for public inspection in accordance with GRAMA.

(2) Any payment by the Attorney General under a contingency fee contract shall be made available for public inspection in accordance with GRAMA.

(3) After June 30 but on or before September 1 of each year, the Attorney General shall submit a written report to the president of the Senate and the speaker of the House of Representatives describing the Attorney General's use of contingent fee contracts with outside counsel during the fiscal year that ends the immediately preceding June 30.

(a) A report under Rule R105-1-11(3) shall identify:

(i) each contingent fee contract the Attorney General entered into during the fiscal year that ends the immediately preceding June 30; and

(ii) each contingent fee contract the Attorney General entered into during any earlier fiscal year if the contract remained in effect for any part of the fiscal year that ends the immediately preceding June 30.

(iii) state the name of the outside counsel that is a party to the contingent fee contract, including the name of the outside counsel's law firm if the outside counsel is an individual;

(iv) describe the nature of the legal matter that is the subject of the contingent fee contract, unless describing the nature of the legal matter would violate an ethical responsibility of the Attorney General or a privilege held by the state;

(v) identify the state agency which the outside counsel was engaged to represent or counsel;

(vi) state the total amount of attorney fees approved by the Attorney General for payment to an outside counsel for legal services under a contingent fee contract during the fiscal year that ends the immediately preceding June 30; and

(vii) be accompanied by each written determination under R105-1-10(8) and Rule R105-1-5(1)(d) made during the fiscal year that ends the immediately preceding June 30.

R105-1-12. Contracts

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Those awarded a contract under this Rule shall be required to enter into a written contract with the Attorney General. The written contract shall contain all material terms set forth in:

(1) The final procurement documents issued by the Utah Attorney General;

(2) The provisions in documents submitted by the provider to the extent such provisions are accepted by the Attorney General;

(3) A termination for cause and a termination for convenience clause; and

(4) Any terms required by law, whether by the constitutions, statutes, or rules or regulations of the United States or the State of Utah.

(5) Nothing in this Rule regarding contingency fee contracts may be construed to expand the authority of a state department, division, or other agency to enter into a contract if that authority does not otherwise exist.

R105-1-13. Retention and Non-availability of Files

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(1) All proposals submitted to the Attorney General under this rule become the property of the State of Utah and the office of the Attorney General.

(2) All information in all proposals shall be placed in a file relating to the project for which the proposal was submitted. Each file shall contain:

(a) If applicable, a copy of all written determinations of the Attorney General required by the Utah Procurement Code or this Rule;

(b) A copy of the procurement documents and any written documentation related to notification requirements; and

(c) All responses to procurements and modifications, in writing, to any procurement if those modifications have been negotiated by the Attorney General.

(d) All records shall be maintained or disposed of in accordance with Part 20 of the Utah Procurement Code.