Posted on November 14, 2016 in Government Operations
The attorney general is the chief legal officer in each state and serves as counselors to their legislatures and state agencies and also as the "People's Lawyer" for all citizens. Circumstances arise, however, in which the attorney general cannot or will not represent the state. When this occurs, state governments must hire outside legal counsel to represent the state.
In 14 of the 15 states in the SLC region,1 the attorney general is elected. This may lead to situations in which the attorney general is from a different political party than the governor and/or legislature. Sometimes in states with this arrangement, the attorney general may refuse to provide a defense for a law which he or she believes is unconstitutional. This currently is happening in North Carolina, where Attorney General Roy Cooper is refusing to defend multiple laws passed by the General Assembly and, in Mississippi, where Attorney General Jim Hood has refused to defend HB 1523, also known as the Protecting Freedom of Conscience from Government Discrimination Act,” or “has refused to defend HB 1523, the state’s religious freedom law.”
In other cases, the attorney general may decide that outside legal counsel has more expertise in the subject matter of a case and that the state would be better served by outside legal counsel. In some instances, the legal matter may not be central to the capital city and a law firm located in the relevant city may be better equipped to address the matter.
All 15 of the SLC member states allow for the use of outside legal counsel. In the majority of the SLC member states, there are laws or policies enumerating in which situations the use of outside legal counsel is permitted. The following sections details these laws and policies in all 15 SLC member states.
The use of outside legal counsel by the attorney general, in consultation with the governor, is permitted. Contingency fee contracts2 are permitted, if a government attorney(s) maintains supervision and control of the legal matter. A government attorney(s) must decide all settlement matters.
Source: Code of Alabama Section 41-16-72
The use of outside legal counsel by the attorney general, with the approval of the governor, is permitted. Contingency fee contracts are permitted, after a review by the Legislative Council, the supervisory committee of the Bureau of Legislative Research, the legislative branch’s research service agency. A government attorney(s) must maintain supervision and control of the legal matter. A government attorney(s) must decide all settlement matters.
No agency shall contract for outside legal counsel without the prior written approval of the attorney general. An exception is made when the case is time-sensitive.
An agency requesting approval for the use of outside legal counsel shall first offer to contract with the Department of Legal Affairs for attorney services at a mutually agreed cost. The attorney general shall decide on a case-by-case basis to accept or decline to provide attorney services. If the attorney general declines to provide the requested attorney services, the attorney general’s written notice shall include a statement explaining why the services cannot be provided. The attorney general shall not consider political affiliation in making such a decision. Contingency fee contracts are permitted.
The attorney general is authorized to select and employ outside legal counsel. The outside legal counsel must perform a thorough check for conflicts of interest which may arise from representation of the state.
The attorney general, directly or through his or her staff, must retain control of the litigation and retain final decision-making authority over any proposals by outside counsel. Decisions regarding settlement of any case must be made by the attorney general.
In Kentucky, there are no generalized guidelines for the utilization of outside legal counsel. For the legislative branch, there is no governing statute or regulation, and there are no statutes or regulations prohibiting the use of outside legal counsel. Outside counsel can be retained through a contractual bidding process or personal services contract.
Source: Email from David Byerman, Director, Legislative Research Commission
The attorney general of Louisiana employs outside legal counsel in cases requiring specialized knowledge. Statutory authority is required to authorize the use of contingency fee payment for outside legal counsel. Any recovery or award of attorney fees, including settlement funds, remits to the state and is deposited into the Department of Justice Legal Support Fund.
The attorney general's office will retain outside legal counsel when the litigation involves specialized areas of knowledge or practice in which the state would be better served by an attorney with specific expertise. In some cases, outside counsel is retained because a conflict of interest prohibits a case from being handled internally. Contingency fee contracts are permitted. Regardless of the type of contract, the attorney general's office maintains full control over the litigation. The office supervises the work of the private attorneys and decides all litigation strategy matters.
In addition, in Mississippi, in accordance with state law, the attorney general also periodically enters into contracts with private lawyers and law firms. In cases handled by private counsel, the attorney general enters into either a fixed hourly rate or contingency fee contract. You may learn more about the process adopted in Mississippi here.
Unless the attorney general makes a prior written determination, that it is both cost effective and in the public interest, Missouri will not enter into a contingency fee contract with a private attorney. The attorney general’s office must supervise and control the ensuing legal process and must decide all settlement matters.
There are three statutes that are relevant to hiring outside counsel. State agencies must get permission from the attorney general to use outside counsel, but the General Assembly does not need to do so. Central, nonpartisan staff at the North Carolina General Assembly do not make the call as to hiring counsel; most of the decisions concerning outside counsel are likely to be confidential.
North Carolina State University’s Office of General Counsel (OGC) also provides legal services and counseling to all University units and personnel for matters related to the operation of the University. In some instances, either special expertise is necessary or timing dictates that outside legal counsel be engaged. The following steps are provided to assist University units in requesting and managing outside legal counsel. While this entails a public university and not the state per se, I believe you will find the steps outlined useful.
The governor has the power to employ outside legal counsel. An agency or official of the executive branch may obtain legal representation by one or more attorneys by one of the following methods:
The attorney general must give written approval to all departments and agencies – excluding state colleges and universities and circuit solicitors – seeking outside legal counsel. Contingency fee contracts are permitted. A contract between the state and outside legal counsel must set forth the parameters of employment and terms of payment in order to enter a contingency fee contract.
The attorney general is required to defend the constitutionality and validity of all legislation enacted by the General Assembly, except when the attorney general attests that such legislation is not constitutional. In this instance, the attorney general shall so certify to the speaker of each chamber.
In all cases in which the attorney general has certified to the speaker of each chamber his or her decision not to defend the constitutionality and validity of any law, the speakers, acting jointly, may employ outside legal counsel to defend the constitutionality of said law. Outside legal counsel shall be paid at a rate that the speakers deem appropriate.
If a state agency or department needs outside legal counsel, the agency or department must submit a Request to Retain Outside Counsel form to the office of the attorney general (OAG). Upon receipt of the form, the OAG will determine whether retaining outside legal counsel would be in the best interests of the state.
After selecting the outside legal counsel, the law firm selected must submit a written disclosure statement identifying every matter in which the firm represents or has represented within the past calendar year, any entity or individual in any litigation matter, directly adverse to the state of Texas or any of its boards, agencies, or elected or appointed state agency officials acting in their official roles. The agency or department shall determine whether to continue with its choice of outside legal counsel, given the disclosure statement. If the agency is satisfied in its choice of outside legal counsel, the agency must submit a statement affirming this to the OAG The disclosure statement also must be submitted to the OAG.
Outside legal counsel may be utilized when the governor concludes that the office of the attorney general (OAG) is unable to perform the needed services, dues to time, cost, or lack of needed expertise. Once outside legal counsel is retained, the assigned counsel of the O.A.G. assumes a supervisory role of the litigation, coordinating legal strategy and decisions with the private attorney(s).
The existence of any actual or potential conflicts of interest involving the Commonwealth of Virginia or any of its agencies or departments must be immediately described to the OAG. If a potential conflict of interest between clients arises, outside legal counsel may request that any objection be waived. The OAG is not authorized to waive a conflict of interest without approval from the client agency.
The attorney general may appoint outside legal counsel as necessary to properly perform the duties of the office. All outside legal counsel shall serve at the will and pleasure of the attorney general. When outside legal counsel is retained to represent the state, any contracts for legal services shall be competitively bid. The attorney general, or designated employee(s) involved in the case, must supervise and maintain control over the litigation and make all decisions related to potential settlements.
News Articles and Other Reference Sources
1 In Tennessee, the attorney general is appointed to an eight-year term by the Tennessee Supreme Court.
2 A contingency fee contract is only paid in the event of a favorable result. Some contingency fee contracts require the client, i.e., the state legislature or a state agency or the governor, to pay in advance any costs that the firm anticipates incurring.
Posted on September 26, 2016 in Transportation
Autonomous vehicles have the potential to change all aspects of mobility – from driver safety and insurance liability to car ownership and how Americans commute – and could disrupt both public and private transportation as we know it. As Google, Uber, Tesla, the automobile industry and other organizations continue to make rapid technological advances in driverless cars, it is vital that federal, state and local governments establish policies, laws and regulations that account for this disruptive technology. Of utmost importance is finding a balance between guarding public safety while regulating insurance/liability and simultaneously encouraging investment in research and development of driverless vehicles and their implementation and integration into our transportation system.
Fully automated vehicles (AVs), also referred to as driverless cars or self-driving cars, are capable of sensing their environment and navigating roads without human input. They rely on technologies like GPS, Lidar and radar to read their surroundings and make intelligent decisions about the vehicle’s direction and speed and interaction with other road users, including cyclists and pedestrians. 1
The National Highway Traffic Safety Administration (NHTSA) has devised a classification system for autonomous vehicles. The details on this system are:
Potential positive impacts include:
Potential negative impacts include:
How Other Industries will be Impacted by Autonomous Cars
Industry experts and stakeholders have widely varying opinions on when driverless vehicles will be available. Automakers and technology developers estimate that driverless vehicle technology will be publicly available in 2018-2020; however, there are other factors that will influence the driverless vehicle time line, including consumer acceptance and adoption, government regulation, privacy and security regulations and insurance industry adjustments.
Traditional automakers like Mercedes and Toyota already make vehicles equipped with systems that keep cars within their lanes, apply brakes when necessary or park themselves. Automakers plan to gradually automate more functions of driving until, perhaps by 2025, some cars will be fully capable of driving themselves.
On the other hand, Google, Alibaba, Baidu and other technology companies are aggressively working on their own driverless vehicles, and could leapfrog the car industry in bringing them to market. Generally, however, researchers believe that driverless vehicles will not be ubiquitous on roadways until 2025 - 2040 (and some believe even later). 5
Currently, the government’s role in the burgeoning driverless vehicle industry is limited. This section describes the government’s role as of January 2016 at the federal, state and local levels in the United States.
At the federal level, NHTSA is supporting some initial research in automated vehicles, human interactions with automated vehicles, and performance and safety requirements. The organization also has established a classification system for various levels of vehicle automation. NHTSA issued policy guidance with recommendations (not requirements) for states that have authorized the operation of self-driving vehicles, including how to ensure safe operation of the cars throughout the testing phase. Many of the federal government’s efforts have been focused on funding research and policy development on connected vehicles, including getting pilot programs off the ground.
The National Highway Traffic Safety Administration (NHTSA) recently issued long-awaited guidance delineating responsibilities of the federal and state governments for self-driving cars. While strong safety oversight will be a hallmark of policies governing testing and deployment, the federal government recognizes the potential of these vehicles for saving time, money and lives. Response to the guidance largely has been positive and a number of states appear poised to move quickly on new autonomous vehicle legislation in the days and months ahead. 6
At the state level, a wide variety of laws and regulations have been enacted or implemented. As of January 2016, California, Michigan, Florida, Nevada, Tennessee and Washington D.C. have enacted legislation allowing limited driverless vehicle testing on public roadways. Related legislation is pending in many other states. The statutory language varies among the states and the focus of legislation varies among these topics:
Currently, there is little consistency or precedent on a safety and licensing framework among the existing and emerging legislation. Some states have opted against the creation of new regulations for driverless vehicle testing or operation because of concern that previous laws have stunted research in those states that passed testing regulations.
|Alabama||AL S 178 (2016)||Proposed in 2016|
|California||CA SB 1298 (2012)||Enacted|
|California||CA AB 1592 (2016)||Proposed in 2016|
|California||CA AB 2682 (2016)||Proposed in 2016|
|California||CA AB 2866 (2016)||Proposed in 2016|
|California||CA SB 431 (2016)||Proposed in 2016|
|Connecticut||CT HB 6344 (2015)||Proposed in 2015|
|Florida||FL HB 1207 (2012)||Enacted|
|Florida||FL HB 599 (2012)||Enacted|
|Florida||FL HB 7027 (2016)||Enacted|
|Florida||FL HB 7061 (2016)||Enacted|
|Georgia||GA SB 113 (2015)||Proposed in 2015|
|Georgia||GA SB 113 (2016)||Proposed in 2016|
|Hawaii||HI HB 632 (2015)||Proposed in 2015|
|Hawaii||HI HB 1458 (2015)||Proposed in 2015|
|Hawaii||HI HB 2687 (2016)||Proposed in 2016|
|Hawaii||HI SB 630 (2016)||Proposed in 2016|
|Idaho||ID SB 1108 (2015)||Proposed in 2015|
|Illinois||IL HB 3136 (2016)||Proposed in 2016|
|Louisiana||LA HB 1143 (2016)||Enacted|
|Maryland||MD HB 172 (2015)||Proposed in 2015|
|Maryland||MD SB 778 (2015)||Proposed in 2015|
|Maryland||MD HB 8 (2016)||Proposed in 2016|
|Maryland||MD SB 126 (2016)||Proposed in 2016|
|Massachusetts||MA HB 2977 (2016)||Proposed in 2016|
|Massachusetts||MA HB 4321 (2016)||Proposed in 2016|
|Massachusetts||MA SB 1841 (2016)||Proposed in 2016|
|Michigan||MI SB 169 (2013)||Enacted|
|Michigan||MI SB 663 (2013)||Enacted|
|Michigan||MI SB 927 (2016)||Proposed in 2016|
|Michigan||MI SB 928 (2016)||Proposed in 2016|
|Michigan||MI SB 995 (2016)||Proposed in 2016|
|Michigan||MI SB 996 (2016)||Proposed in 2016|
|Michigan||MI SB 997 (2016)||Proposed in 2016|
|Michigan||MI SB 998 (2016)||Proposed in 2016|
|Minnesota||MN HB 3325 (2016)||Proposed in 2016|
|Minnesota||MN SB 2659 (2016)||Proposed in 2016|
|Mississippi||MS SB 2672 (2015)||Proposed in 2015|
|Missouri||MO HB 924 (2015)||Proposed in 2015|
|Nevada||NV AB 511 (2011)||Enacted|
|Nevada||NV SB 140 (2011)||Enacted|
|Nevada||NV SB 313 (2013)||Enacted|
|New Jersey||NJ AB 554 (2016)||Proposed in 2016|
|New Jersey||NJ AB 851 (2016)||Proposed in 2016|
|New Jersey||NJ AB 3745 (2016)||Proposed in 2016|
|New Jersey||NJ SB 343 (2016)||Proposed in 2016|
|New York||NY AB 10586 (2016)||Proposed in 2016|
|New York||NY SB 7879 (2016)||Proposed in 2016|
|North Carolina||NC HB 782 (2015)||Proposed in 2015|
|North Dakota||ND HB 1065 (2015)||Enacted|
|Oregon||OR SB 620 (2015)||Proposed in 2015|
|Pennsylvania||PA HB 2203 (2016)||Proposed in 2016|
|Pennsylvania||PA SB 1268 (2016)||Proposed in 2016|
|Rhode Island||RI SB 2514 (2016)||Proposed in 2016|
|Tennessee||TN SB 598 (2015)||Enacted|
|Tennessee||TN SB 2333 (2016)||Enacted|
|Tennessee||TN SB 1561 (2016)||Enacted|
|Tennessee||TN HB 616 (2015)||Proposed in 2015|
|Tennessee||TN HB 1564 (2016)||Proposed in 2016|
|Tennessee||TN HB 2173 (2016)||Proposed in 2016|
|Texas||TX HB 933 (2015)||Proposed in 2015|
|Texas||TX SB 1167 (2015)||Proposed in 2015|
|Texas||TX HB 3690 (2015)||Proposed in 2015|
|Utah||UT HB 280 (2016)||Enacted|
|Virginia||VA HB 1372 (2016)||Proposed in 2016|
|Washington||WA HB 2106 (2016)||Proposed in 2016|
|Washington, D.C.||2012 DC B 19-0931||Enacted|
Local government involvement in the advancement of driverless vehicles is minimal. A few cities are making the news as driverless vehicles are being tested on their streets (notably Mountain View, California; Las Vegas, Nevada; Pittsburgh, Pennsylvania); however, the cities are not necessarily investing in the technology or actively forming partnerships with the technology developers. 7
For additional information, the following excerpted news articles provide further resources:
“As of August 2016, seven states and the District of Columbia have enacted autonomous vehicle legislation. Another state has an executive order on the books.”
“Even as federal safety officials step up their investigation of the fatal crash of a driver operating a Tesla car with its Autopilot system engaged, the company continues to defend the self-driving technology as safe when properly used.” The New York Times. 8
“All the hardware exists to build fully autonomous vehicles, Tesla Motors CEO Elon Musk said Wednesday, but developers need more precise maps and the artificial intelligence to process them in a computer small enough to fit in a car.” Forbes. 9
“Even before Tesla revealed that a fatal accident had occurred while one of its cars was in semiautonomous driving mode, a debate was well underway between researchers and engineers: Is it possible to get a driver to safely take back control of a car once the vehicle has started driving itself?” The New York Times. 10
“The director of policy for the Pennsylvania Department of Transportation said a new task force organized to hash out regulatory standards for the autonomous vehicle industry expects to complete its findings by the end of the year.” Pittsburgh Business Times. 11
“If you’re thinking about autonomous or self-driving cars these days, you’re probably thinking about safety. Recent events have raised serious doubts over whether self-driving cars are really ready for widespread public use. But that’s not what this story is about. This story is about the social and economic consequences of the coming wave of semi-autonomous and completely self-driving vehicles.” Digital Trends. 12
“Many automotive and technology experts, however, expect that fully developing the technology and perfecting regulations for two-ton vehicles tooling around our roads without a human at the controls will take a decade or two. And determining to a statistical certainty whether autonomous vehicles are safer will take even longer.” Los Angeles Times. 13
“Uber has fundamentally changed the taxi industry. But its biggest disruption may be yet to come. The ride-hailing company has invested in autonomous-vehicle research, and its CEO Travis Kalanick (pictured above) has indicated that consumers can expect a driverless Uber fleet by 2030. Uber expects its service to be so inexpensive and ubiquitous as to make car ownership obsolete. Such ambitious plans could make its disruption of the taxi industry look quaint in comparison.” Mobility Lab. 14
Two presentations recently given at the CSG/EAST annual meeting in Quebec serve as additional resources:
1 Isaac, Lauren. “Driving Towards Driverless: A Guide for Government Agencies.” WSP Parsons Brinckerhoff. http://www.wsp-pb.com/Globaln/USA/Transportation%20and%20Infrastructure/ driving-towards-driverless-WBP-Fellow-monograph-lauren-isaac-feb-24-2016.pdf (accessed August 4, 2016).
2 U.S. Department of Transportation Releases Policy on Automated Vehicle Development.” U.S. Department of Transportation, National Highway Traffic Safety Administration. http://www.nhtsa.gov/About+NHTSA/Press+Releases/ U.S.+Department+of+Transportation+Releases+Policy+on+Automated+Vehicle+Development (accessed August 5, 2016).
3 Isaac, Lauren. “Driving Towards Driverless.”
4 Isaac, Lauren. “How Other Industries will be Impacted by Driverless Cars.” Driving Towards Driverless Cars. https://drivingtowardsdriverless.com/2015/12/04/how-other-industries-will-be-impacted-by-driverless-cars/ (accessed September 8, 2016).
5 Isaac, Lauren. “Driving Towards Driverless.”
6 Sloan, Sean. “As Federal Autonomous Vehicle Policy is Issued, States Poised to Move Quickly.” The Council of State Governments. September 22, 2016. http://knowledgecenter.csg.org/kc/content/federal-autonomous-vehicle-policy-issued-states-poised-move-quickly (accessed September 26, 2016).
7 Isaac, Lauren. “Driving Towards Driverless.”
8 Vlasic, Bill and Neal E. Boudette. “As U.S. Investigates Fatal Tesla Crash, Company Defends Autopilot.” The New York Times. July 12, 2016. http://www.nytimes.com/2016/07/13/business/tesla-autopilot-fatal-crash-investigation.html?_r=1.
9 McMahon, Jeff. “Software is the Last Obstacle to Fully Autonomous Vehicles, Elon Musk Says.” Forbes. August 4, 2016. http://www.forbes.com/sites/jeffmcmahon/2016/08/04/software-is-the-last-obstacle-to-fully-autonomous-vehicles-elon-musk-says/#37d4d1f83d60.
10 Quain, John. “Makers of Self-Driving Cars Ask What to Do With Human Nature.” The New York Times. July 7, 2016. http://www.nytimes.com/2016/07/08/automobiles/wheels/makers-of-self-driving-cars-ask-what-to-do-with-human-nature.html.
11 Schooley, Tim. “Autonomous vehicle task force working to provide guidelines on remote testing.” Pittsburgh Business Times. July 12, 2016. http://www.bizjournals.com/pittsburgh/blog/morning-edition/2016/07/autonomous-vehicle-task-force-working-to-provide.html.
12 Zurschmeide, Jeff. “What Happens to Drivers? The Ripple Effects of Autonomous Cars Go Beyond Safety.” Digital Trends. July 7, 2016. http://www.digitaltrends.com/cars/will-self-driving-cars-cost-us-jobs/.
13 Hiltzik, Michael. “Is the world ready for driverless cars? Are driverless cars ready for the world?” Los Angeles Times. May 6, 2016. http://www.latimes.com/business/hiltzik/la-fi-hiltzik-driverless-cars-20160506-snap-story.html.
14 Goddin, Paul. “Uber’s plan for self-driving cares bigger than its taxi disruption.” Mobility Lab. August 18, 2015. http://mobilitylab.org/2015/08/18/ubers-plan-for-self-driving-cars-bigger-than-its-taxi-disruption/.