2-37.010. Private Attorney Services

(1) The following forms shall be used by agencies when requesting approval to contract for private attorney services pursuant to Section 287.059, F.S:

(a) The Department of Legal Affairs adopts a form to be completed by agencies who wish to obtain approval to contract for private attorney services. Form OAG-001 (5/20), entitled “Request for Attorney General Approval of Private Attorney Services,” is hereby incorporated by reference and available from http://www.flrules.org/Gateway/reference.asp?No=Ref-12205 or at the “Other Resources” link at http://www.myfloridalegal.com/aglink.

(b) All contracts for private attorney services shall contain a completed addendum entitled “Office of the Attorney General Attachment A for Private Attorney Services,” Form OAG-002, (5/20), which is hereby incorporated by reference and available from http://www.flrules.org/Gateway/reference.asp?No=Ref-12206 or at the “Other Resources” link at http://www.myfloridalegal.com/aglink.

(c) Completed forms shall be submitted to [e-mail].

(2) The standard fee schedule to be utilized by agencies is as follows:

(a) Specialized attorney services are limited to admiralty, copyright, patent, trademark, international communications, media, bond and securities law, (including litigation and other services normally performed by such counsel) and may be billed up to $250.00 per billable hour.

(b) All other attorney services may be billed up to $200.00 per billable hour.

(c) All paralegal, legal assistant, law clerk and research assistant services may be billed up to $40.00 per billable hour.

(d) The term “billable hour” means the actual time spent providing attorney services to the agency measured in 6 to 10 minute intervals. Costs for such items as exhibits, transcripts, and witness fees are not considered a part of the billable hour. They will be reimbursed based upon documented third party vendor charges to the contract attorney, provided prior authorization is given by the agency. Expenses incurred for travel shall be limited to terms and rates established in Section 112.061, F.S. Office overhead shall include routine office expenses such as local phone calls, routine postage, copy work, local travel expenses, printed library materials and courier, word processing, clerical or secretarial services, and shall be included in the billable hour and not separately compensated. Non-routine office overhead shall include expenses such as long distance phone calls, facsimile transmissions, bulk mailings, bulk third party copying and computer-assisted legal research services and will be reimbursed based upon documented third party vendor charges provided they are justified to the agency. There shall be no payment for firm surcharges added to third party vendor charges. Exceptional non-routine office overhead expenses must be defined on a case-by-case basis in the contractual agreement and must be approved by the agency before being incurred.

(e) Alternate billing methodologies, such as value billing, i.e., flat fee for services or fee by deliverable; contingency fee or billing on the basis of a percentage of the amount involved may be used in lieu of hourly rates when it is deemed the most cost-effective or appropriate billing methodology.

1. Contingency fees may be negotiated not to exceed 35 percent through trial and not to exceed 40 percent through appeal, where attorney services involve litigation, except collections litigation shall not exceed 30 percent.

2. Where contingency fees involve non-litigation attorney services, the fee shall not exceed the rate in the market in which the attorney service is being provided.

3. Flat fees and other billing methodologies shall not exceed the rate in the market in which the attorney service is being provided.

4. The term “rate in the market” as used in subparagraphs (2)(e)2. and 3., means the geographic location and the legal specialization in which the attorney service is being provided.

(f) At the beginning of each professional relationship with an agency, a contract attorney or firm shall provide a schedule of current billing rates for partners and associates.

(3) Standard Fee Schedule Exceptions. Agencies wishing to exceed the standard fee schedule for attorney services set forth in subsection (2), must demonstrate necessity and obtain prior approval by completing and submitting Form OAG-003 (5/20), entitled “Statement of Waiver,” which is hereby incorporated by reference and available from http://www.flrules.org/Gateway/reference.asp?No=Ref-12207 or at the “Other Resources” link at http://www.myfloridalegal.com/aglink. to the Department of Legal Affairs. The Statement of Waiver must provide a detailed analysis justifying the need to exceed the standard fee schedule that addresses one or more of the following criteria:

(a) The inability of the agency to obtain adequate legal representation within the confines of the standard fee schedule. In such instances the agency must set forth in detail the efforts at procurement which the agency engaged in prior to determining that the standard fee schedule would not provide adequate attorney services.

(b) The agency is unable to obtain attorney services with the special expertise necessary to perform the particular legal function which the agency requires within the fee schedule. In such instances the agency must set forth in detail the reasons why special expertise is necessary, the analysis which led it to that conclusion, and why the agency was unable to find such expertise at a price within the standard fee schedule.

(c) The waiver is necessary in order to provide attorney services as a result of an emergency, an immediate danger to the public health, safety and welfare, or an opportunity for the state to preserve or enhance fiscal resources and that failure to contract immediately for attorney services in excess of the standard fee schedule will work to the detriment of the state. In such instances the agency must set forth in detail the emergency, danger or opportunity in question, efforts made at procuring attorney services within the standard fee schedule, the reasons why such efforts failed, or a justification why the emergency, danger or opportunity in question requires immediate contracting for attorney services in excess of the standard fee schedule.

(4) Failure to comply with any of the provisions of Section 287.059, F.S. or this rule shall constitute grounds for denial of an agency’s request to contract for private attorney services.

Rulemaking Authority 287.059 FS. Law Implemented 287.059 FS. History–New 10-7-90, Formerly 2-1.013, Amended 7-12-93, 10-29-97, 5-18-00, 6-5-01, 12-17-01, 7-11-06, 10-21-20.