Title 42. Public Officers and Employees

Chapter 5. Duties

Part I. Special Duties

42:262    Special attorney or counsel

A. In the event that the attorney general, or any state agency, board or commission, not including any public postsecondary education institution, is represented by a special attorney or counsel, the special attorney or counsel shall not be compensated for such representation on a contingency fee or percentage basis in the absence of express statutory authority, including R.S. 17:100.10, R.S. 23:1669, R.S. 37:2153, R.S. 41:724 and 922, R.S. 42:1157.3, R.S. 46:15, R.S. 47:1512, 1515.3, 1516, 1516.1, and 1676. In retaining a special attorney or counsel, preference shall be given to private attorneys licensed to practice law in this state and law firms domiciled and licensed in this state.

<Subsec. B effective after notification by treasurer that balance in the Department of Justice Legal Support Fund reaches an amount which exceeds the Fiscal Year 2013-2014 balance by Two Million One Hundred Thousand Dollars.>

B. Any recovery or award of attorney fees, including settlement, in litigation involving the attorney general or any state agency, board, or commission, not including any public postsecondary education institution, belongs to the state and shall be deposited into the state treasury into the Department of Justice Legal Support Fund in accordance with R.S. 49:259. No payment of attorney fees shall be made out of state funds in the absence of express statutory authority, including R.S. 17:100.10, R.S. 23:1669, R.S. 37:2153, R.S. 41:724 and 922, R.S. 42:1157.3, R.S. 46:15, R.S. 47:1512, 1515.3, 1516, 1516.1, and 1676, except such payment of attorney fees as may be approved by the Joint Legislative Committee on the Budget during the interim between legislative sessions.

<Subsec. C effective after notification by treasurer that balance in the Department of Justice Legal Support Fund reaches an amount which exceeds the Fiscal Year 2013-2014 balance by Two Million One Hundred Thousand Dollars.>

C. Any special attorney or counsel retained or employed by the attorney general, or any state agency, board, or commission, not including any public postsecondary education institution, shall not accept nor demand as payment for the services rendered by the special attorney or counsel anything of economic value from any third party.

D. All contracts with any special attorney or counsel shall require the keeping of accurate records of the hours worked and the expenses incurred in the representation of the public entity. In no case shall the attorney general, or any state agency, board, or commission, not including any public postsecondary education institution, incur fees in excess of five hundred dollars per hour for legal services. In the event of a settlement or final judgment which would result in an award of attorney fees in excess of five hundred dollars per hour, the fee amount shall be reduced to an amount equivalent to five hundred dollars per hour, or the maximum rate approved by the Attorney Fee Review Board, whichever is greater.

E. The provisions of this Section shall not apply to attorneys or counsel retained pursuant to R.S. 39:1533(B) and R.S. 49:258 for purposes of defending the state, its agencies and its employees in tort litigation or other matters involving the Self-Insurance Fund as established in R.S. 39:1533.

F. To the extent not otherwise prohibited by Subsections A, B, C, and D of this Section, the following provisions additionally apply to the retainer of any special attorney or counsel:

(1) In the event it should be necessary to protect the public interest, for any state board or commission to retain or employ any special attorney or counsel to represent it in any special matter for which services any compensation is to be paid, the board or commission may retain or employ such special attorney or counsel solely on written approval of the governor and the attorney general and pay only such compensation as the governor and the attorney general may designate or approve in the written approval. The approval shall be given in their discretion upon the application of the board or commission.

(2) The applicant shall include in its application all of the following:

(a) A resolution that includes all of the following:

(i) A statement showing that a real necessity exists.

(ii) A statement fully providing the reasons for the action.

(iii) A statement of the total compensation to be paid.

(iv) The statutory authority for the contingency fee if the contract contains such a fee.

(b) A copy of the proposed contract described in the resolution.

(3) The governor and attorney general shall not ratify or approve any action of a board, or commission, not including any public postsecondary education institution, in employing any special attorney or counsel or paying any compensation for special service rendered, unless all the formalities as provided by this Section have been complied with or if any of the following apply:

(a) The terms of the resolution do not match the required terms of the contract.

(b) The need is not sufficiently shown in the resolution.

(c) The fee is unreasonable.

(d) The governor or attorney general determines there is a valid reason not to ratify or approve the action.

(4) The governor or attorney general shall respond to the application in writing by giving approval or rejection with reasons.

G. The provisions of this Section shall not apply to any legal fees or attorney compensation made in connection with the issuance of bonds, notes, or other issuances of indebtedness when such legal fees or attorney compensation are approved by the State Bond Commission pursuant to R.S. 39:1405.4.

Amended by Acts 2014, No. 796, § 1, eff. June 19, 2014.