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Home My WebLink AboutMINUTES - 05181993 - 2.3 2.3 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Adopted this Order on May 18, 1993 , by the following vote: AYES: Supervisors Powers, Smith, Bishop, McPeak and Torlakson NOES: None ABSENT: None ABSTAIN: None SUBJECT: Procedures for selecting legal consultants, conflict policy, and status report on pro bono legal services for County benefit. The Board before it the following reports: May 7, 1993 report from Victor J. Westman County Counsel, re: Pro Bono Legal Services for County Benefit; April 14, 1993 report from Victor J. Westman, County Counsel, subject: County Counsel's Revised contracting procedures for outside legal services and billing review and proposed Legal Conflicts of Interest Policy; July 1990 brochure entitled: Contra Costa County Risk Management Division Liability Claims Manual.. The Board also had before it the Finance Committee Report No. 1 on the same subject. The Board separately approved FC.1; and by this action, ACCEPTED the above reports. ii hereby certify that this is a true and correct copy of an action taken and ontorod on the minutes of the Board of Supervi8 rs on the data shown. ATTESTED: PHIL BATCHELClerk of tho Board of Supervisors County Administrator DePuty cc: County Counsel County Administrator Risk Management-CAO S 2 -3 COUNTY COUNSEL'S OFFICE CONTRA COSTA COUNTY J MARTINEZ, CALIFORNIA Date: May 7, 1993 To: Board of Supervisors From: VICTOR J. WESTMAN, County Counsel Re: Pro Bono Legal Services For County Benefit By its order, the Board of Supervisors has directed that legal firms who have performed substantial compensated legal services for the County during the preceeding three year period should be requested to indicate their agreement and availability to provide some pro bono legal services for the County. As directed, this office has contacted the law firms of Rosen, Bien & Asaro; Crosby, Heafy, Roach & May; and Morrison & Foerster - all of whom have indicated they would be willing to provide some pro bono legal services (or continue that provision) within certain parameters. All three firms were concerned that they retained their discretion to determine if any County request for specific pro bono legal services meets their individual firm's criteria for the acceptance and performance of such work, no particular conflict difficulties exist, and their firm resources are availble at that time for the performance of the requested task. Concerning the these three law firms, the Rosen office indicated (subject to the aforenoted parameters) that the firm would be pleased to provide a reasonable amount of pro bono legal services for Contra Costa County's benefit. In further discussions with the firm, it was indicated it was willing to accept some appellate work from this office in areas involving challenges to County decisions . We are presently in the process of determining cases and materials to be . submitted to the Rosen firm for its consideration and acceptance. on a pro bono basis . The Crosby, Heafy, Roach and May law firm has indicated that it would continue to consider providing pro bono representation of the County subject to the above-noted criteria as into any particular proposed legal task. As you are probably aware, this firm on a pro bono basis has been defending the Board of Supervisors' decision approving the proposed establishment of a Youth Recovery Facility in the Marsh Creek area by the Bi-Bett Corporation. Board of Supervisors 2 May 7 , 1993 Finally, the firm of Morrison and Foerster has indicated that it will consider (in appropriate circumstances meeting its criteria) the assumption of the provision of some pro bono legal services for Contra Costa County. We are in the process of considering what particular legal .matter or matters would be appropriate for submission to that firm for its consideration. As noted above, all three of these law firms were concerned that °whatever pro bono work they agree to provide for the County meets their firms' criteria for the provision of public benefit or civic duty type legal services . We will proceed to arrange for pro bono servicess from these law firms and will report to the Board on the services provided. VJW:df df10(1): pro-bono fay D F' SAWORB JAY ROSEN t ~ MY� TELEPHONE MICHAEL W.BIEN ROSEN, BIEN& ASARO /�A f/�� 14181433-8830 ANDREA 0.ASARO ATTORNEYS AT LAW 8 ALLISON M.ZIEVE EIGHTH FLOOR ��((/�►��, v �� TELEFAX KATHERINE SHER 155 MONTGOMERY STREET C 44151433-7104 STEPHEN M.LIACOURAS ARTHUR L.MARTIN(Of Counsel) SAN FRANCISCO. CALIFORNIA 94104 April 6, 1993 Arthur Walenta, Esq. Office of the County Counsel Contra Costa County 651 Pine Street Martinez, CA 94553 Dear Mr. Walenta: This is in response to your letter of April 1, 1993. My firm would be pleased to provide a reasonable amount of pro bono legal services to Contra Costa County. Our willingness to undertake any particular assignment, of course, will depend upon conflicts checks, availability of firm resources at the time a request is made, and other such considerations. I wish to remind you, as well, that as .in the past, for more _routine matters, my firm is prepared to represent the County at substantially reduced rates. I .remains our pleasure to work with the County of Contra Costa. Sincerely yours, ROSEN, IEN & AS/AR By: ar�fo d , os SJR:mjs 1 t MEMBER OF THE CONNECTICUT AND DISTRICT OF COLUMBIA BARS,AS WELL AS THE CALIFORNIA BAR I / , CROSBY, HEAFEY, ROACH & MAY PROFESSIONAL CORPORATION ATTORNEYS AT LAW 1999 HARRISON STREET 700 SOUTH FLOWER STREET,SUITE 2200 OAKLAND,CALIFORNIA 94612-3573 333 BUSH STREET,SUITE 2380 LOS ANGELES,CALIFORNIA 90017 SAN FRANCISCO,CALIFORNIA 94104-2899 (213)696-8000. (510)763-2000 (415)543-6700 FAX(213)896-8080 (415) 986-3400 FAX(413)391.6269 FAX(510)273-8866 RECEf ft 12 1993 April 8, 1993 Victor J. Westman, Esq. Office of the County Counsel County Administration Building P. O. Box 69 Martinez, CA 94553 Re: Pro Bono Cases Dear Mr. Westman: I received your letter of April 2, 1993. We will, as we have in the past, consider representing Contra Costa County on a pro bono basis in appropriate cases that meet our criteria for such work. We believe programs such as this offer benefits to our firm as well as to the County. It is our hope and belief that our normal legal services rendered to the County are at a competitive rate and- that the quality of service and the results are consistently excellent. Although your letter seems to link the handling of complex matters that generate over $100,000 in fees with participation in a pro bono legal services program, we view pro bono work as a civic duty rather than linked to a volume of business. We would be happy to consider continued pro bono representation of the County once the policy has been more clearly defined. CROSBY, HEAFEY, ROACH MAY PROFESSIONAL CORPORATION Victor J. Westman, Esq. April 8, 1993 Page 2 Obviously, we look forward to working with you and the County on both normal fee contracts and on those that are appropriate or pro bono services. Very trul urs, ohn E. Carne" JEC/r MORRISON &FOERSTER SAN FRANCISCO ATTORNEYS AT LAW NEW YORK LOS ANGELES WASHINGTON,D.C. SACRAMENTO PLEASE RESPOND TO: DENVER ORANGE COUNTY P.O.BOX 8130 LONDON PALO ALPO WALNUT CREEK,CA 94596-81M BRUSSELS SEATTLESrQ HONG KONG 12, 1993 101 YGNACIO WALNUT CREEKOY ROAD,SUITE so TOKYO ,CA 945964095 ts& TELEPHONE (510)295-3300 'Pi wVN�� F. DIRECT DIAL NUMBER TELEFACSIMILE (510)946-9M MF►�INQ' (510)295-3310 May 7, 1993 BY MESSENGER Victor Westman County Counsel Contra Costa County County Administration Building 651 Pine Street, 9th Floor Martinez, CA 94553 Re: Pro Bono Legal Services Dear Vic: As you know, Morrison & Foerster is extremely proud of its longstanding tradition and commitment to pro bono service. We understand from your letter dated April 2, 1993 that the Board of Supervisors may be developing policies requiring law funis doing work for the County to provide some legal services to Contra Costa County on a pro bono basis. We are enclosing for your information a few copies of our pro bono handbook which sets forth this firm's policies and describes its proud tradition as a leader among major United States law Tums in its commitment to providing pro bono legal services. As this handbook.indicates, we provide.pro bono legal services consistent with Morrison & Foerster's pro bono policies, and subject to resolving actual or potential conflicts of interest. In 1992, Morrison & Foerster personnel performed 115,000 hours of pro bono work. The average Morrison & Foerster attorney spent 110 hours on pro bono cases. MORRISON &FOERSTER Victor Westman May 7, 1993 Page Two The firm has dedicated substantial pro bono services to children's issues, women's issues, health care, affordable housing, and AIDS. Here in Contra Costa County, we have been extremely active in the Contra Costa Legal Aid program, and in substantial contributions to other social and community programs. We have assisted governmental agencies confronted with emergencies, such as the City and County of San Francisco after the earthquake in 1989 and the City of Oakland after the fire in 1991. Morrison & Foerster would of course be interested in participating in a pro bono program the Board of Supervisors may establish to the extent that the legal work contemplated is consistent with the firm's pro bono policies, and subject to the resolution of any conflict issues that may be presented by a particular matter. We look forward to hearing from you on this matter. Very truly yours, A. David A. Gold DAG:caj Enclosures cc: Pamela Reed, Managing Partner, Walnut Creek office Barbara Reeves, Chair, Pro Bono Committee w93643 2 -3 OFFICE OF COUNTY COUNSEL 651 Pine Street, 9th Floor Martinez, California 94553 Telephone: 646-2074 Date: April 14, 1993 To: Finance Committee From: Victor J. Westman, County Counsel Subj : County Counsel' s Revised Contracting Procedures for Outside Legal Services and Billing Review and Proposed Legal Conflicts of Interest Policy To supplement, and consistent with the Board's March 23, 1993 order and referral to the Finance Committee on "Establishment of New Additional Procedures for Selecting Legal Consultants/Outside Attorneys and Reviewing Billing, " the County Counsel' s Office will be implementing the attached memorandum to guide its administration of any legal contracts hereafter assigned to it for that purpose. In this regard, we are asking the Finance Committee to ( 1 ) recognize the memorandum' s legal contract administration procedures and concur with them; and ( 2) , consider and recommend to the full Board of Supervisors the adoption of the attached Exhibit L's "Outside Legal Counsel Conflicts of Interest Policy. " The proposed Policy would establish a uniform procedure for addressing legal counsel conflict matters . Should the Committee desire written explanation of any of the particulars of the attached documents, please advise and such will be provided. We will, of course, attend any Finance Committee meeting on this subject. VJW:pr Attachment cc: Supervisors, District Offices Anthony Enea, County Administrator' s Office Ron Harvey, Risk Management Div. , CAO a 40 OUTSIDE LEGAL COUNSEL CONFLICTS OF =INTEREST POLICY It is the policy of the Contra Costa County Board of Supervisors, on behalf of the County and all other governmental entities of which it is the governing board, to prohibit the employment by any law firm adverse to the County while simultaneously being employed by the County, unless the Board is ,advised of, and gives specific consent to, such adverse employment. Any law firm responding to a request for proposal or contract offer shall disclose all present and contemplated employment which is or may be adverse to the County. Any law firm which has been retained by the County which desires employment which is or may be adverse to the County shall transmit a statement of such desire to the County Counsel prior to undertaking such employment. The statement shall include a description of the employment and the reasons, if any, why the County should consent. The County Counsel will forward the request to the Board of Supervisors with recommendation for action. If the Board of Supervisors declines to consent to the employment, the law firm shall decline any such employment or shall not represent the County. The authority to give consent of the County is not delegated to any office or employee of the County. The County recognizes that this policy may exceed the Rules of Professional Conduct 4-101 and 5-102 of the State Bar of California. Where applicable, law firms employed by the County shall comply with such Rules in securing necessary consent from their other clients. Agency and Department heads are directed to disseminate this policy to currently employed counsel and include a statement of this policy in future requests for proposals and contracts with outside counsel. Specifically, and in addition, a law firm employed as bond counsel cannot represent, in the bond issue or any other matter, any other participant in the bond issue without specific consent of this Board. EXHIBIT L A:\BR-L.EXE 0 0 CONTRA COSTA COUNTY OUTSIDE COUNSEL POLICIES AND PROCEDURES (REV. 4-93 ) This memorandum outlines the principal policies and procedures governing the representation of Contra Costa County or any District governed by the Contra Costa County Board of Supervisors, by outside counsel (other than bond counsel or counsel hired through the County Administrator' s Risk Management Division) . The hiring of such counsel shall be by written Agreement, substantially in the form of Attachment 1 to this memorandum, and consistent with the Board of Supervisors ' adopted policy on selection and payment of outside private legal counsel . I . RELATIONSHIP BETWEEN OUTSIDE COUNSEL AND THE COUNTY COUNSEL A. Selection of Outside Counsel . The Board of Supervisors ( "Board" ) has sole authority to select outside counsel. All department, agency and district requests to employ outside counsel shall be presented to the Board by the Office of County Counsel ( "County Counsel" ) . County Counsel shall make recommendations to the Board concerning which firm(s ) to hire on a case-by-case basis . B. Prior Approval. Unless otherwise instructed, outside counsel must obtain the approval of County Counsel concerning the following: 1 . Designation and change of Supervising Attorney or Lead Counsel . 2 . Implementation of the Case Evaluation and Plan. 3 . Retention of any consultant or expert witness to assist with the case or matter. 4 . Travel outside the Counties of Alameda, Marin, Sacramento, San Francisco, San Joaquin, San Mateo, Santa Clara, Solano or Sonoma. 5 . Making any settlement proposal on County' s behalf . 6 . Filing any demurrer or motion. 7 . Scheduling any deposition. 8 . Undertaking research of more than twelve ( 12 ) _ 'hours on any particular issue. 9 . Any expense item exceeding Five Hundred Dollars ($500 . 00 ) . II . PERIODIC REPORTING 1 Outside counsel must provide several reports during the life of the contract, as follows : la t A. Case Evaluation and Plan. This is the initial confidential report which will serve as the basis for developing the County' s legal position and strategy for controlling costs . See Exhibit A, Attachment 1 for Sample. Outside counsel will provide this written report within 45 calendar days from receiving the case. The County must approve the .plan and assign a case priority level which will establish the frequency for submittal of future Case Status Reports . The Case Evaluation and Plan must include such elements as : 1 . Statement of known facts and legal issues . 2 . Statement of precedent-setting or sensitive issues . 3 . Statement of known injuries and known damages . 4 . Statement of possible or potential injuries/damages . 5 . Statement of liability exposure, including likelihood of success or failure as to each listed legal issue. 6 . Recommendation for case strategy: discovery, motions, legal research, consultants and experts . 7 . Initial Cost Estimate - Total and annualized costs for attorney fees and expenses . B. Case Status Reports . Outside counsel must provide scheduled written reports summarizing all significant actions since the last report. See Exhibit C to Attachment 1 for Sample. County Counsel will determine when Case Status Reports are due based on a Priority Rating System. These reports must include such elements as : 1 . Results of motions . 2 . Results of all settlement negotiations . 3 . Developments impacting previously approved budget. Outside counsel must revise its budget estimates if events occur which substantially impact the budget approved in the Case Evaluation and Plan or a subsequent Case Status Report. Outside counsel must also notify the County in writing when .25%, 50% and 75% of the projected budget has been spent. 2 z . C. Status Updates . Outside counsel must provide unscheduled reports - verbal or written - to supplement "the Case Status Reports . These will alert the County to significant action or events in the Case which cannot wait until the next scheduled Case Status Report. See Exhibit E to Attachment 1 for Sample. 2a D. Proposed Settlement Recommendations . Outside counsel must outline all settlement proposal terms and obtain County' s written approval to settle. E. Closing Report. If the County terminates the Agreement, outside counsel must provide a report describing the case status and listing future court and other pertinent dates . III . PRIORITY RATING SYSTEM County Counsel will rate each case' s magnitude, considering liability exposure, sensitivity, total costs, and precedence. Level I is most significant, Level III is least. Outside counsel must provide scheduled Case Status Reports based on the assigned level. The County may change the level during the Agreement. period. See Exhibit D to Attachment 1 for details . IV. EXPENSES The Agreement identifies reimbursable and non-reimbursable expenses . A. County will reimburse outside counsel for actual out- of-pocket expenses with no additional costs for having advanced the funds . Reimbursable expenses include: deposition and transcription fees; filing and service fees, when required; messenger service; travel (other than travel expenses from the regular offices of outside counsel to the County of Contra Costa) ; photocopying; consultant and expert witness fees; and expenses in excess of Five Hundred Dollars ($500 . 00 ) pre-approved by County Counsel. B., County will not reimburse for: any staff time or overtime for secretarial, clerical, or word processing; time spent to provide information for a fee audit; travel or telephone expenses from outside counsel's regular offices to the County of Contra Costa; or work not authorized by County. V. BILLINGS The principal basis of fees will be established at the time of retention. Any increase in the agreed rates will require the County's approval . No increase in the agreed rates can be sought during the first two years . Outside counsel must submit detailed monthly billings identifying: A. Case name and court number. For condemnation cases, outside counsel must submit individual billings for each separate parcel being acquired unless otherwise agreed to (in writing) with the County Counsel' s supervising attorney. 3 G B. Staffing level, hourly rate, and detailed time and activity descriptions for each attorney and/or paralegal, including: conferences, correspondence, depositions, discussions, preparation of briefs and/or opinions, document filing, hearings, meetings, research, case review, travel, trials, and telephone calls . 3a C. Fees and expenses are to be broken down monthly as well as cumulatively to ensure constant tracking of costs . D. Consultant and expert witness bills must be attached to outside counsel's monthly statements . VI . COUNTY'S LEGAL BILLING REVIEW County Counsel 's Supervising Attorney, the County Administrator's designee and appropriate County and accounting staff will review each bill and determine, at a minimum the following: A. The fee charged is consistent with the approved hourly fee schedule. B. The calculations are correct. C. The bill does not contain charges which were previously paid. D. The bill is clearly divided into categories of fees based on hours worked and costs which outside counsel has advanced to consultants and experts . E. All items charged for demurrers, motions and discovery have been pre-approved by County Counsel . F. The time charged is commensurate with the task. G. The County is not being asked to pay for repetitive or redundant work. H. The County has been credited for any service which was improperly or erroneously performed. VII . PLEADINGS AND RESEARCH Outside counsel must provide County Counsel with a copy of all pleadings and legal memoranda prepared in connection with the County matter. Since County Counsel has substantial expertise in many areas of the law, outside counsel must obtain the approval of County Counsel prior to undertaking research of more than twelve ( 12 ) hours on any particular legal issue. 4 AGREEMENT BY AND BETWEEN CONTRA COSTA COUNTY AND FOR PROFESSIONAL LEGAL SERVICES 19 TABLE OF CONTENTS Section/Paragraph Pace Recitals 1 I . Term and Termination 1 A. Term 1 B. Termination 1 II. Attorneys' Services and Responsibilities 3 A. Key Attorney Personnel 3 B. Legal Representation 3 C. Reporting Requirements 5 III. County's Duties and Responsibilities 9 A. Rey County Personnel 9 B. Duties and Responsibilities 10 IV. Compensation 11 A. Fees 11 B. Expenses 11 V. Billincs and Payments 12 A. Billings 12 B. Payments 14 VI. Notices 14 VII . Assicnment 15 VIII. Standard Terms and Conditions 15 I%. County's Conflicts of Interest Policy 15 IX. Mercer 15 - 0 TABLE OF CONTENTS Section/Paracrach pace X. Exhibits 18 Exhibit A - Case Evaluation and Plan Form Exhibit B - County's Approval/Denial Form of Attorneys' Case Evaluation Plan Exhibit C - Case Status Report Form Exhibit D - County's Priority Rating System Exhibit E - Status Update Form Exhibit F - Settlement Recommendation Form Exhibit G - Yinal Report Form Exhibit H - County's Legal Billing Review Procedures Exhibit I - Attorneys' Hourly Billing Rates Exhibit J - Attorneys' Declaration on Billing Statement Exhibit R - Standard Terms and Conditions for Outside Legal Contracts Exhibit L - County's Conflict of Interest Policy AGREEMENT WITH FOR PROFESSIONAL LEGAL SERVICES _. THIS AGREEMENT, dated , is made BY AND BETWEEN the COUNTY OF CONTRA COSTA, a political subdivision of the State of California, hereinafter referred to as "COUNTY" and 41 hereinafter referred to as "ATTORNEYS . " RECITALS WHEREAS, COUNTY desires to contract for professional legal services; and WHEREAS, ATTORNEYS provide professional legal services , and are particularly qualified to perform the required services due to their legal competence and expertise; and WHEREAS, COUNTY desires to retain ATTORNEYS' services in connection with: NOW, THEREFORE, COUNTY and ATTORNEYS agree as follows : I . Term and Termination A. Term The term of this AGREEMENT shall begin on the date of execution by the Chairman of the Board of Supervisors and shall continue until completion of the matter . for which ATTORNEYS have been retained, unless sooner terminated pursuant to Paragraphs I , B, 1 . or 2 . B. Termination 1 . Termination For COUNTY'S Convenience a. Services performed under this AGREEMENT may be terminated in whole or in part at any time COUNTY deems to be in its best interest. COUNTY shall terminate services by delivering to ATTORNEYS a written Termination Notice ,specifying the extent to which services are terminated and the effective termination date. b. After receiving a Termination Notice and unless otherwise directed by COUNTY, ATTORNEYS shall : 1 0 ( 1 ) Take all necessary steps to stop services on the date and to the extent specified in the Termination Notice. ( 2) Complete services not terminated by the Termination Notice. C. After receiving a Termination Notice, ATTORNEYS shall give COUNTY a Closing Report as described in Section I, B. , 3. below and: ( 1) ATTORNEYS shall submit final billing fcr terminated services promptly, but no later than thirty ( 30) calendar days from the effective termination date. ( 2) If ATTORNEYS fail to submit a final billing within the time allowed, COUNTY may determine, on the basis of information available to COUNTY, the amount, if any, due to ATTORNEYS. After COUNTY makes a determination, it shall pay ATTORNEYS that amount. COUNTY'S determination shall be final. 2. Professional Conflict of Interest If either ATTORNEYS or COUNTY determines a matter of professional conflict has arisen during trial preparation or during the trial itself, ATTORNEYS or COUNTY may give written notice of immediate termination of this AGREEMENT subject to ATTORNEYS' duty to provide adequate representation until the appropriate substitutions can be made. 3. Closinc Report Upon Termination a. ATTORNEYS shall deliver a Closing Report to COUNTY immediately after terminating services under Section I, B. , 1. or 2. b. The Closing Report shall include, but not be limited to: (1) A brief description of thecase facts. ( 2) A discussion of applicable law. (3) A list and description of all future scheduled court appearances and outstanding discovery matters. C. ATTORNEYS shall give COUNTY all evidence, case files and attorney work product for any case in which ATTORNEYS are substituted out 2 . as attorney of record. This includes any computerized index,- computer programs and document retrieval systems created or used for the case and for all related litigation matters. When instructed by COUNTY, ATTORNEYS shall file with the court the' appropriate substitution of counsel. II . ATTORNEYS' Services and Resvonsibilities A. Rev ATTORNEY Personnel 1. ATTORNEYS' Supervising .Attorney for this AGREEMENT shall be Any change in ATTORNEYS' Supervising Attorney shall be first authorized in writing by COUNTY. 2. ATTORNEYS' Supervising Attorney shall have full authority to act for ATTORNEYS on all daily operational matters under this AGREEMENT and shall serve as or designate lead counsel for all law and motion appearances, pretrial and trial proceeding(s) , settlement conference(s) or meetings of counsel for parties, depositionsf document productions, and all court and other proceedings in which substantive rights of the parties may be determined. Designation of Lead Counsel shall be subject to COUNTY'S written approval.- B. Lecal .Revresentation 1. ATTORNEYS shall provide COUNTY with the necessary representation by staff qualified to perform the legal tasks at the least costly billing category. 2. ATTORNEYS' legal representation shall include, but not be limited to: a. All settlement negotiations and pretrial proceedings. b. Appearances at all law and motion hearings, discovery proceedings, hearings on order to show cause, writs, trials, and, where applicable, administrative hearings. C. All legal research, preparation for hearings, and review of all documents and other evidentiary materials. d. Investigative, secretarial, and clerical support services necessary to perform the legal representation in a professional manner. 3 . e. ALL approved Appellate proceedings . 3 . ATTORNEYS shall provide all required reports referenced in Section II , C. 4 . ATTORNEYS shall meet with COUNTY as COUNTY requires . 5 . ATTORNEYS shall obtain COUNTY'S written approval of ATTORNEYS' Case Evaluation and Plan, referenced in Section II, C. , 1 . , before providing any professional legal services in the case, except for filing the initial response (answer, demurrer or appropriate motion) , or unless otherwise authorized by COUNTY. 6 . ATTORNEYS shall obtain COUNTY'S written approval before retaining any consultant or expert witness to assist with any individual case assigned to ATTORNEYS. 7 . ATTORNEYS shall obtain the approval of COUNTY'S Supervising Attorney prior to filing any demurrer or motion or scheduling any deposition: 8 . ATTORNEYS shall obtain the approval of COUNTY'S Supervising Attorney prior to undertaking research of more than twelve ( 12 ) hours on any particular issue. 9 . ATTORNEYS shall obtain COUNTY'S prior approval for travel outside the counties of : Alameda, Marin, Sacramento, San Francisco, San Joaquin, San Mateo, Santa Clara, Solano or Sonoma . 10 . ATTORNEYS shall consult with COUNTY on trial and tactical decisions . 11 . ATTORNEYS shall assist COUNTY in settlement evaluations and negotiations, and shall obtain COUNTY'S authority before making any settlement proposal on COUNTY'S behalf or to the Court or to any other party to the case. 12 . ATTORNEYS shall provide COUNTY with a Status Update as described in Section II , C. , 3 . , at least 45 calendar days prior to a case being scheduled for a mandatory or voluntary settlement conference or a trial, whichever comes first. 4 13, ATTORNEYS shall immediately notify COUNTY verbally and in writing when a judgment, ruling on a motion or demurrer, verdict or other award is rendered. 4a 14. ATTORNEYS shall provide COUNTY with copies of all pleadings, filed by ATTORNEYS or any other party with the court or other administrative body. ATTORNEYS shall also provide COUNTY with copies of all court rulings. 15. ATTORNEYS shall keep and preserve all backup documentation to support all entries included in its billings as referenced in Section V, A. , 51 for a period of four (4) years after termination or completion of the matter for which ATTORNEYS have been retained. C. Reporting Requirements ATTORNEYS shall provide COUNTY with the following reports: 1. Case Evaluation and Plan a. The Case Evaluation and Plan is a confidential independent evaluation of the case that will serve as the basis for developing COUNTY'S legal position and - strategy and for controlling litigation costs. ( 1) ATTORNEYS shall provide the Case Evaluation and Plan in the format of Exhibit A. (2) ATTORNEYS shall provide the Case Evaluation and Plan to COUNTY within forty-five (45) calendar days after receiving the case from COUNTY. In exceptional circumstances, and with COUNTY'S prior approval, ATTORNEYS may submit it within seventy (70) calendar days after receiving the case from COUNTY. (3) ATTORNEYS shall base the Case Evaluation and Plan on a review of the pleadings, discovery, reports and other documents; an examination of physical evidence, if any; and any other matters ATTORNEYS deem appropriate based on their expertise and experience. b. The Case Evaluation and Plan shall include, but not be limited to: ( 1) Statement of known facts and identified legal issues, including opposing attorney(s) name(s) , (if known) . 5. c (2) Statement of precedent-setting or sensitive issues, if applicable. ( 3) Statement of known injuries and known damages ( 4) Statement of possible or potential injuries/damages. (5) Statement of liability exposure, including the likelihood of success or failure as to each listed legal issue. ( 6) Recommendation(s) on case strategy, including discovery, motions, extent of legal research, consultants and percipient witnesses or experts to be retained and extent of expert work to be performed. (7) An Initial Cost Estimate; ATTORNEYS' projection of the costs they can reasonably anticipate incurring. Costs shall be budgeted on a total and ' annualized basis and shall include, but not be limited to: (a) Attorney fees - an identification of the staffing levels, hourly rates and estimated number of hours for each partner, associate, and/or paralegal. (b) Consultant and expert witness rates and estimated number of hours each will be needed. (c) Deposition I and transcript expenses and other miscellaneous expenses. (d) Pees and expenses for handling the case through each of the following applicable stages: i) Pleadings ii) Discovery iii) Pretrial conference(s) iv) Arbitration v) Trial, and vi) Any other identified stages . 6. C. COUNTY shall approve dr deny ATTORNEYS' Case Evaluation and Plan in the format of Exhibit B. 2. Case Status Reports--Scheduled a. A Case Status Report is a summary of all significant actions and developments in the case since the last report or the Case Evaluation and Plan, as applicable. b. ATTORNEYS shall provide COUNTY with Case Status Reports in the format of Exhibit C. C. ATTORNEYS shall provide Case Status Reports as often as COUNTY determines. (1) COUNTY shall determine the reporting frequency based on having assigned a priority level to the case consistent with COUNTY'S Priority Rating System as referenced in Exhibit D. (2) COUNTY'S Priority Rating System establishes the case's magnitude, liability exposure and sensitivity. (3) COUNTY shall assign the priority level and reporting schedule after receiving and approving ATTORNEYS' Case Evaluatior and Plan. d. Case Status Reports shall include, but not be limited to, a summary of the following actions: (1) Status of discovery. (2) Status of expert witness and consultant investigations. (3) Changes in case strategy. (4) Results of motions. (5) Changes in COUNTY'S exposure/liability. (6) Developments impacting previously approved budget. (7) Results of all settlement negotiations. (8) Changes in opposition's legal representation. 7 . ( 9) Actions planned or -scheduled during the next reporting period. ( 10) Revisions to Initial Cost Estimate( s) . (a) ATTORNEYS shall provide revisions when events occur to substantially impact the Case Evaluation and Plan or Initial Cost Estimate. (b) ATTORNEYS shall in all cases state in the report the actual percentage of the total Initial Cost Estimate expended' to date. (c) ATTORNEYS shall notify COUNTY immediately in writing when ATTORNEYS have expended fifty percent (50%) and seventy-five percent (75%) of the Initial Cost Estimate. (d) ATTORNEYS shall not exceed the Initial Cost Estimate without- COUNTY'S prior written authorization. COUNTY'S written authorization shall be a condition precedent to COUNTY'S obligation for any payment beyond the approved initial Cost Estimate. 3. ,Status Updates--Unscheduled a. An unscheduled Status Update is a supplement to the regularly scheduled Case Status Report. b. Status Updates may be verbal or written at COUNTY'S option, and are to be provided immediately when significant actions or events occur on the case and when COUNTY requests them. c. Written Status Updates shall be submitted in the format of Exhibit E. 4. Proposed Settlement Recommendations a. ATTORNEYS shall promptly submit written Settlement Recommendations for COUNTY'S approval on all cases. ATTORNEYS shall clearly state the reasons supporting or rejecting the proposed settlement. 8 . b. ATTORNEYS shall submit -written proposed Settlement Recommendations in the format of Exhibit F. 5. Appellate Action a. ATTORNEYS shall submit, in writing, all requests to appeal or petition for other review, or defend in the appellate court on any case. ATTORNEYS shall clearly state the reason(s) supporting the recommended action. b. If COUNTY approves ATTORNEYS' request, ATTORNEYS shall submit all .briefs and papers to COUNTY for COUNTY'S review prior to ATTORNEYS filing with the appellate court. C. ATTORNEYS shall list County Counsel as counsel with ATTORNEYS on all briefs and papers submitted to the appellate court.. 6. final Report a. Within thirty (30) calendar days of each case's settlement or adjudication and no further action contemplated, ATTORNEYS shall submit a Final Report. In exceptional circumstances, and with COUNTY'S prior approval, ATTORNEYS may submit it within sixty (60) calendar days. . b. The Final Report shall include, but not -be limited to: (1) The date of the settlement or judgment. (2) The amount of the settlement or judgment. (3) The terms and conditions of any non- monetary settlement or judgment. C. The Final Report shall be in the format of Exhibit G. III . County's Duties and Responsibilities A. Rev County Personnel 1. COUNTY'S Supervising Attorney shall be COUNTY shall inform ATTORNEYS in writing of any change in Supervising Attorney. 9 . 2 . COUNTY'S Supervising, Attorney shall have full authority to act for COUNTY on all daily operational matters under this AGREEMENT and shall review and approve all ATTORNEYS' reports, whether written or verbal, and any change in ATTORNEYS' Supervising Attorney or designated Lead Counsel. 3. Approval of proposed settlement recommendations is subject to approval by COUNTY'S Board of Supervisors. B. Duties and Responsibilities 1 . COUNTY shall assign a priority level to each case consistent with COUNTY'S Priority Rating System after receiving and approving ATTORNEYS' Case Evaluation and Plan. 2. COUNTY shall notify ATTORNEYS in writing of a case.,a assigned priority level and reporting schedule within ten (10) business days after receiving and approving ATTORNEYS' Case Evaluation and Plan. a. COUNTY'S approval of ATTORNEYS' Case Evaluation and Plan shall be in the format of Exhibit B. b. COUNTY may, at its option, change the �. assigned priority rating level and reporting schedule at any time during this AGREEMENT, and shall notify ATTORNEYS in writing of* the change. The change is effective upon this notification. 3. COUNTY shall review and approves a. All reports, requests, and other services and responsibilities as required under this AGREEMENT. b. Any proposed tactical maneuver or trial strategy. C. All recommended settlement proposals prior to giving ATTORNEYS settlement authority. d. All billing statements in accordance with the review procedures referenced in Exhibit H. 4. COUNTY shall have access to review all correspondence and judicial and administrative documents. 10 . 5. COUNTY shall monitor ATTORNgYS' overall performance under this AGREEMENT. COUNTY reserves the right to conduct audits by its own staff, a COUNTY auditor, or a contract auditor. 6 . County Counsel shall evaluate and report to COUNTY'S Board of Supervisors on ATTORNEYS.' performance, as required. IV. Compensation A. Fees 1. ATTORNEYS shall provide legal services at the billing rates listed in Exhibit I. 2. Billing rates may be subject to review and adjustment, as agreed between COUNTY and ATTORNEYS, only after two years from the date of execution of this Agreement by COUNTY. Any rate increase shall require an amendment to this AGREEMENT. B. Expenses COUNTY shall reimburse ATTORNEYS for their actual out- of-pocket expenses but without any additional costs for having advanced the funds or for expenses generally considered as overhead already reflected in the ATTORNEYS' hourly rates. ATTORNEYS shall note that COUNTY is exempt from all, f.ilinq fee charges. 1. Reimbursable ordinary expenses shall include, but not be limited to: a. Deposition fees. b. Transcript fees. C. Postage. d. Messenger service. e. Process service. f. Document reproduction by outside vendor. q. In-house document reproduction. If amount charged in any one month exceeds $200.00, prior County approval shall be obtained. 2 . Reimbursable extraordinary expenses shall include charges of which ATTORNEYS have obtained COUNTY'S prior approval. Such expenses shall include,, but not be limited to: 11. a. Consultants b. Expert witnesses . C. Travel outside the Counties of Alameda, Marin, Sacramento, San Francisco, San Joaquin, San Mateo, Santa Clara, Solano or Sonoma . d. Investigative services . e. Any expense item exceeding Five Hundred Dollars ( $500 . 00 ) . 3 . Non-reimbursable expenses shall include, but not be limited to: a. Staff time or overtime for performing secretarial, clerical, or word processing functions . b. Charges for time spent to provide necessary information for COUNTY audits or billing inquiries . C . Charges for work performed which had not been authorized by COUNTY. Such work shall be a gratuitous effort by ATTORNEYS . d. Mileage, travel expenses or telephone expenses from the regular office of ATTORNEYS to the County of Contra Costa. V. Billings and Payments A. Billings 1 . ATTORNEYS shall submit its billing statement monthly in arrears, no later than the tenth ( 10th) of the month following the month service was rendered. 2 . The original billing statement(s ) and one copy shall be submitted to COUNTY'S Supervising Attorney: County of Contra Costa Office of the County Counsel County Administration Building, 9th Floor Post Office Box 69 Martinez, California 94553-0116 Attention: COUNTY'S Supervising Attorney 12 G 3 . The original of each billing statement shall have the declaration of ATTORNEYS' Supervising Attorney or designated Lead Counsel as stated in Exhibit J. 4 . Each billing statement shall be identified by a unique number and shall be itemized to include: a. Case name and court number. For condemnation cases, outside counsel must submit individual billings for each separate parcel being acquired unless otherwise agreed to (in writing) with the County Counsel' s Supervising Attorney. b. Staffing level(s ) , hourly rates and specific activities for each attorney and/or paralegal . ( 1 ) Each activity shall be billed separately as a line item in a time reporting format acceptable to COUNTY. ( 2 ) A detailed description of specific activities for each attorney and/or paralegal which shall include, but not be limited to: (a) In-person conferences . (b) Telephone call(s ) . (c) Correspondence. (d) Depositions . (e) Case reports . (f ) Pleading, brief or opinion drafting. . (g) Hearings . (h) Research , including computerized legal research databases . (i ) Case reviews . ( j ) Trials . 13 (k) Travel. The street, city and county address shall be individually identified for all destinations . C . Total current monthly fees billed for each staffing level . d. Total cumulative fees billed for each staffing level . 13a e. Total current monthly expenses billed in the following categories : ( 1 ) Consultant and expert witness expenses ; (2) Deposition and transcript expenses; and (3) Other miscellaneous expenses . f . Total cumulative expenses to date billed in (e) directly above. 5 . ATTORNEYS shall have and maintain all backup documentation to support all entries included in the monthly billing statement. Such documentation shall be in a form subject to audit and in accordance with generally accepted accounting principles . ATTORNEYS shall make such documentation available to auditors upon request and in accordance with Exhibit K(9 ) . B. Payments 1 . COUNTY shall make payment(s ) for services rendered under this AGREEMENT monthly , in arrears based on the monthly itemized billing statement(s) ATTORNEYS submit to COUNTY. 2 . COUNTY'S designated legal, administrative and accounting staff shall review all billing statements in accordance with the review procedures in Exhibit H. 3 . COUNTY shall make its best effort to process payments promptly after receiving ATTORNEYS' monthly billing statement. COUNTY shall not pay interest or finance charges on any outstanding balance(s) . VI . Notices All notices and required reports shall be written and hand-delivered or mailed by first class, postage prepaid, addressed to COUNTY or ATTORNEYS at the addresses below, or at any other address COUNTY or ATTORNEYS shall provide in writing to each other: A. If to COUNTY: County of Contra Costa Office of the County Counsel County Administration Building, 9th Floor Post Office Box 69 Martinez, California 94553-0116 Attention: COUNTY'S Supervising Attorney 14 B. If to ATTORNEYS: Attention: ATTORNEYS Supervising Attorney VII . Assignment A. No part of this AGREEMENT or any right or obligation arising from it is assignable without COUNTY'S written consent. B. Any attempt by ATTORNEYS to assign or subcontract services relating to this AGREEMENT without COUNTY'S consent shall constitute a material breach of this AGREEMENT. C. However, ATTORNEYS may retain consultants and experts as ATTORNEYS deem appropriate after receiving COUNTY'S written approval . VIII . Standard Terms and Conditions Standard terms and conditions for COUNTY outside legal services contracts are attached as Exhibit K. IX. COUNTY'S Conflicts of Interest Policy Without limitation as to, or alteration of, obligations otherwise imposed on ATTORNEYS with respect to COUNTY under the Rules of Professional Conduct or under law, and in addition to such obligations, ATTORNEYS agree to comply with the Conflicts of Interest Policy adopted by COUNTY'S Board of Supervisors . COUNTY'S Outside Legal Counsel Conflicts of Interest Policy is attached as Exhibit L. X. Merger A. Exhibits A through L are attached and incorporated as part of this AGREEMENT. The Exhibits are titled as follows : 1 . Exhibit A - Case Evaluation and Plan Form 2 . • Exhibit B - County's Approval/Denial Form of ATTORNEYS' Case Evaluation and Plan i 3 . Exhibit C - Case Status Report Form 4 . Exhibit D - County' s Priority Rating System 15 a - i I 5. Exhibit E - Status Update; Form 6. Exhibit F - Settlement Recommendation Form 7. ' Exhibit G - Final Report Form 8. Exhibit H - County's Legal Billing Review 1 Procedures I 9. Exhibit I - ATTORNEYS' Hourly Billing Rates 10. Exhibit J - ATTORNEYS' Declaration on Billing Statement 11. Exhibit R - Standard Terms and Conditions for County Outside Legal Contracts 12. Exhibit L - COUNTY'S Conflicts of Interest Policy B. This AGREEMENT shall constitute the complete and exclusive statement of understanding between COUNTY and ATTORNEYS which supersedes all previous written or oral agreements, and all prior communications between the 16 . COUNTY and ATTORNEYS relating to the subject matter of this AGREEMENT. IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT on the below date(s) . Dated: , 19 COUNTY OF CONTRA COSTA, a political subdivision of the State of California SIGNED AND CERTIFIED THAT A By COPY OF THIS DOCUMENT HAS Chair of its Board of BEEN DELIVERED TO THE Supervisors CHAIRMAN OF THE BOARD By "COUNTY" PHIL BATCHELOR, COUNTY ADMINISTRATOR AND Clerk, of the Board of Supervisors Dated: 19 APPROVED AS TO FORM: VICTOR J. WESTMAN, COUNTY COUNSEL By Dated: , 19_ By "ATTORNEYS" 17 J } �� 1n , �' Exhibit A page 1 of 3 CASE EVALUATION AND PLAN ( to be completed by Attorneys' Supervising Attorney) 1 i ATTORNEY'S NAME: CASE NAME: COURT #: INCIDENT CLAIM CLAIX DENIED COMPLAINT FILED! DATE: / . I DATE: l / DATE: / / DATE: TYPE CASE: CASE/RATTER DESCRIPTION i FACTSs* OPPOSING ATTORNEY'S NAME (if known) :. T INVESTIGATIONS NEEDED: DESCRIBE NEED:* 3 INJURIES OR DARAGES CLAIlZDs* (list punitive damages separately) 4 PLAINTIFF'S CONTENTION:* I 5 AFFIRMATIVE DEFENSES:* *attach additional pages) it more space is needed Exhibit A page 2 of 3 CASE EVALUATION AND PLAN 6 INITIAL DISCOVERY:* (Designate expert/parties) DEPOSITIONS INTERROGATORIES RECORDS/DOCUMENTS TO BE TAKEN TO BE SENT TO BE PRODUCED I ( list names) (list names) (list names I i 7 RESEARCH REQUIRED:* (General description of legal i issues) Specifically identify any research requiring i original effort as opposed to research that has i generally been done previously by the firm: ESTIMATED AMOUNT OF TIME FOR RESEARCHt Hours 8 MONETARY EVALUATION OF CASE: I POTENTIAL VERDICT SETTLEMENT LIABILITY/EXPOSURES$ RANGE:$ VALUE:$ 9 RECOMMENDED CASE STRATEGY:* j i 10 STAFFING/HOURLY RATE:* -Identify the staffing levels, i hourly rates and estimated number! j of hours for each partner, associate, or paralegal. HOURLY ESTIMATED NAME TITLE RATE_ # OP HOURS *attach additional pages) if more space is needed. Exhibit A page 3 .of 3 CASE EVALUATION AND PLAN 11 CONSULTANT and/or -Identify the consultant's and/or EXPERT WITNESS* expert's specialization and the hourly rate to be charged. HOURLY ESTIMATED NAME SPECIALTY # OF HOUR 12 INITIAL COST ESTIMATE:* -Projected budget, including j attorney fees and expenses, ' for handling case through each of the following stages: (Please base this estimate on past experience with similar case(s] . ) T70M PY#4 PLEADINGS DISCOVERY PRETRIAL CONFERENCE($.) ARBITRATION,. TRIAL TOTAL COSTS (Fees and expenses) ESTIMATED FINAL DISPOSITION DATE: *attach additional pages) if more space is needed. APPROVED BY: DATE: (ATTORNEYS' SUPERVISING ATTORNEY) ------------------------------------------------------------------- RECEIVED HY: DATE: (COUNTY'S SUPERVISING ATTORNEY) COMMENTS: VICTOR J.WESTMAN OFFICE OF COUNTY COUNSEL DEPUTIES: COUNTY COUNSEL PHIWP s.ALTHOFF SILVANO B.MARCHESI CONTRA COSTA COUNTY _ SHARON .CASSI SON ANDREA W.CASSIDY ARTHUR W.WAL.ENTA,JR. COUNTY ADMINISTRATION BUILDING VICKIE L DAWES MARKE S.ESTIS ASSISTANTS MICHAELDFARR P.O.BOX 69 LILLIAN T.FLU11 PHONE(415)6 MARTINEZ,CALIFORNIA 94553-0116 DENNIS GRAVES FAX(415)646--10781078 4 C.KEVIN T.KERR EDWARD V.LANE,JR, MARY ANN MASON PAUL R.MUNIZ CASE EVALUATION AND PLAN VALERIE J.RANCHE DAVID F.SCHMIDT APPROVAL LETTER DIANA J.SILVER VICTORIA T.WILLIAMS (Name of ATTORNEYS' Supervising Attorney, ATTORNEYS' Name and Address) Re: (Case Name and Number) Dear I have reviewed your enclosed Case Evaluation and Plan submitted (date) I have assigned this case a Level _(level assigned) rating. This means you are to provide us with (reporting schedule) Case Status Reports. The first report is due (date) Attached is our Case Evaluation and Plan Approval. If you have any questions, please call me at (510) (telephone n)`. Thank you. Very truly yours, VICTOR J. WESTMAN COUNTY COUNSEL By: County's Supervising Attorney Attachment Exhibit B Page 1 A:\BR-CASEV.LTR o .. VICTOR A.WESTMAN OFFICE OF COUNTY COUNSEL DEPUTIES: COUNTY COUNSEL PHILLIP S.ALTHOFF SILVANO B.MARCHESI CONTRA COSTA COUNTY SHARON LANDERSON ANDREA W.CASSIDY ARTHUR W.WALENTA,JR. VICKI L tis ASSISTANTS COUNTY ADMIMSTRATION BUILDING MARKE S.ESTIS P.O.BOX 69 LILLIAN CHAEL .WII ARR PHONE(415)646-2074 MARTINQ CALIFORNIA 94553-0116 DENNISC.GRAVES FAX(415)646-1078 KEVIN T.KERR EDWARD V.LANE,JR. MARY ANN MASON PAUL R MUNR VALERIE J.RANCHE DAVID F.SCHMIDT DIANA J.SILVER CASE EVALUATION AND PLAN VICTORIA T.WILLIAMS DENIAL LETTER (Name of ATTORNEYS' Supervising Attorney, ATTORNEYS' Name and Address) Re: (Case Name and Number) Dear I have reviewed your enclosed Case Evaluation and Plan submitted (date)-. I am withholding approval for the reason(s) noted in point(s) # (Point n) on the attached Approval/Denial Form. If you agree with our required revisions, please make the necessary changes in the document and resubmit it to my office by (date) . If you do not agree, please call me immediately at (510) (telephone a) so we can resolve this matter. I will assign a priority level to this case when I approve your revised Plan. Thank you. Very truly yours, VICTOR J. WESTMAN COUNTY COUNSEL By: County's Supervising Attorney Attachment , Exhibit B Page 2 A:\BR-DENIA.LTR 0 CASE EVALUATION AND PLAN APPROVAL/DENIAL FORM fNsi}Oe.TloM s To M eeMieted by CeeatT'S $a"—tois* ►ttesaoT. *-Abase eosseore" to taooe a Ca" 31walaatiea oat Tlr• wsittea eemkeato neeeooeCT oalr !es deatalo•• ATTORNEYS' NAME DATE Or ATTORNEYS' CASE EVALUATION AND PLAN CASE NAME AND NUMBER: 1. CASE DATA: —•• /�/ Approve /_/ Deny Reason Denied: Required Revision: 2. INVESTIGATIONS NEEDED: /_/ Approve /_/ Deny Reason Denied: R*gnired Revision: 3. INJURM OR DAM =S CLAIMM: /_/ Approve /_/ Deny Reason Denied: Required Revision: *Attach additional page (s) if more space is needed. Exhibit B Page 3 0 4 . PLAINTIFF' S CONTENTION: /,/ Approve /_/ Deny Reason Denied: Required Revision: 5. AtrIRMAT1W DElRNSU: /_/ Approve /�/ Deny Reason Denied: Required Revision: 6. INITIAL V13COVZRY: /�I Approve j_/ Deny Reason Denied: Required Revision: 7. RE3EARC8 PJWXPJW: /I Approve I_J Deny Reason Denied: Required R*viaion: .*Attach additional page(s) if more space is needed. Exhibit H Page 4 8 . MONETARY EVALUATION: /_/ Approve / ! Deny Reason Denied: Required Revision: 9- RECOMMENDED CASS STRATEGY: /_/ Approve /_/ Deny Reason Denied: Required Revision: 10. STA"INQ r=S: /�/ Approve /+/ Desiy Reason Denied: Required Revialon: 11. CONSULTANT AND/OR /_/ Approve /_/ Deny EXPZRT WITNiSSSS: Reason Denied: Required Revision: *Attach additional page{s) if more space is needed. Ezhibit 8 Page, S 0 12. INITIAL COST ESTIMATE: /_I Approve /_/ Deny Reason Denied: Required Revision: GENERAL COMMZNT3: Approved / / Denied ASSIGNZD PRIORITY LZVSL: CASs STATUS MORTING SCMMULZ: Laval I Laval II Leel III Monthly Quarterly Sas�i- Annually r1R3T CASZ STATUS RZPORT DUs DATZ: (COUNTY'S SUFZRVISING ATTORNSY) (DATZ) *Attach additional page(s) it mor• space is needed. Exhibit B page 6 Exhibit C CASE STATUS REPORT page 1 of 2 ( to be completed by Attorneys' Supervising Attorney) ATTORNYS' NAME: CASE NAME: COURT #: INCIDENT CLAIM CLAIM DENIED COMPLAINT FILED DATE: / / DATE: / / DATE: / / DATE: COUNTY PRIORITY LEVEL DESIGNATION (Circle if changed from previous report. ) : Level I Level •II Level III STATUS OF DISCOVERY (since last status report) Lint depositions taken:* INTERROGATORIES SENT/RECEIVED:* STATUS OF EXPERT WITNESS/CONSULTANT INVESTIGATIONS:* RESULTS OF MOTIONS (Describe all motions and indicate outcome) :* SIGNIFICANT DEVELOPMENTS WHICH MAY INCREASE OR DECREASE COUNTY'S EXPOSURE/LIABILITY:* *attach additional page(s) if more space is needed d Exhibit C page 2 of 2 CASE STATUS REPORT RECOMMENDED CASE STRATEGY (State clearly changes from previously agreed-to strategy. ) :* i SIGNIFICANT EVENTS: TRIAL SETTING ARBITRATION VOLUNTARY SETTLEMENT I Conference date: Date: Conference Date: MANDATORY SETTLEMENT DEPARTMENT TRIAL DATE: Conference Date: Jury: Non-Jury: COSTS: TOTAL TOTAL INITIAL EXPENDED TO DATE COST ESTIMATE ATTORNEY FEES ` $ EXPENSES $ $ 1 PERCENTAGE OF INITIAL i i TOTAL COSTS _ COST ESTIMATE EXPENDED( I (atty fees i expenses) i EXPENDED TO DATE $ TO DATE: $: APPROVED BY: DATE: (ATTORNEYS' SUPERVISING ATTORNEY) ------------------------------------------------------------------ RECEIVED/APPROVBD BTt DATE: (COUNTY'S SUPERVISING ATTORNEY) COMMENTS: n LAST MEETING WITH ATTORNEYS: NEXT MEETING WITH ATTORNEYS: *Attach additional page(s) if more space is needed Exhibit D COUNTY'S PRIORITY RATING SYSTEK ASSIGNEDi LEVEL I CRITERIA FOR ASSIGNED LEVEL REPORTING RBQQIRffi4214i' 1 I. ! Case has a liability exposure Monthly exceeding $1,000,000 (One-Million Dollars) . Case Status Reports are due the first of each month after or County approves the gAse Evaluation and Plan. ' Projected total defense costs ; exceeding over $300,000 (Three-Hundred-Thousand Dollars) i or 'i 1 Is sensitive or precedent- setting i II. Case has a liability exposure Quarterly exceeding $500,000 (Pive-Hundred-Thousand Dollars) . Case Status Reports are due but less than $1,000,000. every 90 calendar days after (One-Million Dollars) . County approves the Case Evaluation and Plan. or Projected total defense costs exceeding $100,000 (One-Hundred-Thousand Dollars) , but less than $300,000 (Three-Hundred-Thousand Dollars) . , and Case is neither sensitive or precedent-setting. III. Cabe has a liability exposure Semi-Annually under $500,000 i (Five-Hundred-Thousand Dollars) . Case Status Reports are due every 180 calendar days after and, County approves the g,ase Evaluation and Plan. Projected total defense costs less than $1000000 (One-Hundred-Thousand Dollars) . and Case is neither sensitive. or precedent-settinq. a Exhibit E STATQS UPDATE (To be completed by Attorneys' Supervising Attorney) i 1 ATTORNEYS' NAME: ' CASE NAME: COUNTY PRIORITY LEVEL OESIGNATIONs (Circle it changed from , previous report. ) : LEVEL I LEVEL II LEVEL III Z DATE OF LAST REPORT (Case Evaluation i Plan or Case Status Report) : CASE STRATEGY RECONXENDED IN THAT REPORTS* t 3 SIGNIFICANT DEVELOPMENTS/EVENTS SINCE LAST REPORT, WITH DATES- AS� APPLICABLE:* 4 IMPACT Or THBSE' SIGNIFICANT DEVELOPMENTS/EVENTS ON COUNTY'S EXPOSURE/LIABILITY:* 5 REVISED CASE STRATEGY:* 6 IMPACT Or REVISED CASE STRATEGY ON PROJECTED BUDGET:* *Attach additional page(&) if more space is needed. APPROVED BYs DATES (ATTORNEYS' SUPERVISING ATTORNEY) --------------------------------------------------------------------- RECEIVED/APPROVED BYs DATE: (COUNTY'S SUPERVISING ATTORNEY) COMMENTS: - a Exhibit F SEZ'P —CWT RBCOl4EDATION ( to be completed by Attorneys' Supervising Attorney) ATTORNEYS' NAMES CASE NAMES PRIORITY LEVEL DESIGNATION: DATE OF LAST REPORT: LEVEL I LEVEL II_ LEVEL III SETTLEMENT RECOMMENDATION: (Clearly state reasons supporting or rejecting the proposed settlement) : t i i i *Attach additional page(s) it more space is needed. APPROVED BY: DATE: (A RNEYS' SUPERVISING ATTORNEY) -------- ---------------------------------------------------------- RECEIVED BY: DATE: (COUNTY'S SUPERVISING ATTORNEY) COMMENTS: e Exhibit G PINAL REPORT (to be completed by Attorneys' Supervising Attorney) i ATTORNEYS' NAME: i CASE NAME/ COURT #: DATE OF LAST REPORT: CASE DISPOSITION: C� SETTLED Q TRIED TO JURY DATE: DATE: AMOUNT OF SETTLEMENT: VERDICT: DATE PAID: DATE PAID: TRIED TO JUDGE COSTS AWARDED PLAINTIFFS DATE: 0 DECISIONS AMOUNT: ' DATE JUDGEMENT PAID: DATE JUDGEMENT PAID: CASE COMMENTS:* APPROVED BY: DATE: (ATTORNEYS' SUPERVISING ATTORNEY) ------------------------------------------------------------------------- RECEIVED ------------- ------------ ---------------------------------------- RECEIVED BY: DATE: (COUNTY'S SUPERVISING ATTORNEY) COMMENTS:* f CLOSE CASE KEEP CASE OPEN RZASONt• *Attach additional page(s) it more space is needed. COUNTY'S LEGAL BILLING REVIEW PROCEDURES County Counsel 's Supervising Attorney, the County Administrator's designee and appropriate accounting staff shall review all billing statements prior to payment to ATTORNEYS. This review may include, but not be limited to: 1. The determination that the signed and dated declaration of ATTORNEYS ' Supervising Attorney or designated Lead Counsel is on the original of each submitted billing statement. 2 . The determination that the fee charged is consistent with ATTORNEYS' approved hourly rate schedule. 3 . The determination that the multiplication of the hours billed times the approved rate schedule dollars is correct. 4 . The determination that the bill is clearly divided into billing rate categories based on hours worked on each activity for each day and costs which ATTORNEYS have advanced to consultants and experts, depositions, and transcript expenses, and other miscellaneous expenses . 5. Unless specifically identified as "Original Research" on the billing statement, time charged for activities such as research, document and motion preparation, etc. , .shall be considered to be activity previously encountered by ATTORNEYS. 6 . The determination that each item charged is usual, customary, and reasonable for the particular item. If COUNTY determines an item charged is greater than , usual, customary, or reasonable, or is duplicative, ambiguous, excessive, or inappropriate, COUNTY shall either return the bill to ATTORNEYS with a request for explanation or adjust the payment accordingly, and give notice to ATTORNEYS of the adjustment. Exhibit H A:\BR-H.M c ATTORNZY3' HOURLY BILLING- RATZ3 Attorneys' hourly billing rates are: STATING L3VML HOURLY RATZ 3uperviaing Attorney S Naas Title partner(s) 3 Naas(a) Associate(a) 3 Naso(a) In-house paralegal(a) S Name(s) MMI. BIT I ATTORNEYS' DECLARATION ON BILLING STATEHZNT The following declaration shall be made on the original of each billing statement and personally signed and dated by ATTORNEYS' Supervising Attorney or designated Lead Counsel. "I have personally examined this billing statement. All entries are in accordance with -the Agreomant for professional Legal Services, are correct and reasonable for the services performed and costs incurred, and no item on this statement has been previously billed to COUNTY." OATS =GtiA?VRi MANS TI r ZXRISIT J STANDARD TERMS AND CONDITIONS FOR OUTSIDE LEGAL CONTRACTS 1 . Indemnification ATTORNEYS shall indemnify, defend and save harmless COUNTY, its agents, officers and employees from and against any and all liability expense, including defense costs and legal fees, and claims for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, or property damage (including ATTORNEYS' property) , in connection with ATTORNEYS' operations or their services, including any workers' compensation suits, liability or expense, arising from or connected with services performed under this AGREEMENT. 2. workers' Compensation A. Attorneys shall provide and maintain at their own expense during .the term of this AGREEMENT a program of Workers, Compensation insurance in an amount and form to meet all applicable requirements of the Labor Code of the State of California, including Employers Liability with a $150,000 limit, covering all persons providing services on behalf of ATTORNEYS and all risks to such persons under this AGREEMENT. '4- B. ATTORNEYS understand and agree that all ATTORNEYS' personnel furnishing services to COUNTY under this AGREEMENT are employees solely of ATTORNEYS and not of COUNTY for purposes of workers' compensation liability. C. ATTORNEYS shall bear the sole responsibility and liability for furnishing workers' compensation benefits to any ATTORNEYS' personnel for injuries arising from services performed under this AGREEMENT. 3. Failure to Procure Insurance Failure on the part of , ATTORNEYS to procure or maintain required insurance shall constitute a material breach of contract upon which COUNTY may immediately terminate or suspend this AGREEMENT. EXHIBIT R Page 1 4 . Independent Contractor Status This AGREEMENT is between the COUNTY and ATTORNEYS and is not intended, and shall not be construed to create the relationship of agent, servant, employee, partnership, joint venture, or association, as between COUNTY and ATTORNEYS. 5 . Covenant Against Contingent Fees A. ATTORNEYS warrant that no person or selling agency has been employed or retained to solicit or secure this AGREEMENT upon an agreement or understanding for a commission, percentage, brokerage or contingent fee. B. For breach or violation of this warranty, COUNTY shall have the right to terminate this AGREEMENT, and in its sole discretion, to deduct from the AGREEMENT price or consideration, or otherwise recover, the full amount of any such commission, percentage, brokerage or contingent fee. 6 . • - Governing Laws This AGREEMENT shall be construed in accordance with the laws of the State of California. - 7. Compliance with Laws A. ATTORNEYS shall comply with all applicable Federal, State and local laws, rules, regulations, ordinances, and directives, and all provisions required to be included are incorporated by reference. B. ATTORNEYS shall indemnify and hold COUNTY harmless from any loss, damage or liability resulting from a violation on ATTORNEYS, part of such laws, rules, regulations or ordinances. 8. Employment Eligibility Verification ATTORNEYS warrant that they fully comply with all statutes and regulations regarding employment of aliens and others, and that all their employees performing services hereunder meet the citizenship or alien status requirements contained in all statutes and regulations. ATTORNEYS shall obtain, from all covered employees performing services hereunder, all verification and other documentation of employment eligibility status required by all statutes and regulations as they currently exist and as they may be hereafter amended. ATTORNEYS shall retain such documentation for all covered employees for the period prescribed by law. ATTORNEYS shall indemnify, defend and hold harmless the COUNTY, its officers and employees from employer sanctions and EXHIBIT R Page 2 any other liability which may be assessed against ATTORNEYS or COUNTY in connection with any alleged violation of any statute or regulation pertaining to the eligibility for- employment of persons performing services under this AGREEMENT. 9 . Record Retention and Inspection Within ten ( 10) days of COUNTY'S written request, ATTORNEYS shall allow COUNTY or authorized State or Federal agencies or any duly authorized representative to have the right to access, examine, audit, excerpt, copy or transcribe any pertinent transaction, activity, time cards or other records relating to this AGREEMENT. ATTORNEYS shall keep such material, including all pertinent cost accounting, financial records and proprietary data for a period of four (4) years after termination or completion of this AGREEMENT unless COUNTY'S written permission is given to dispose of material prior to the end of such period or until such time as all audits are complete, whichever is later. In the event that records are located outside the County of Orange, ATTORNEYS shall pay COUNTY for travel and per diem costs when an inspection or audit is required. 10. Limitation of COUNTY'S Obligation Due to Non- Appropriation of Funds . A. COUNTY'S obligation is payable only from funds appropriated for the purpose of this AGREEMENT. All funds for payments after June 30 of the current fiscal year are subject to COUNTY'S legislative appropriation for this purpose. Payments during subsequent fiscal periods are dependent upon- the same action. B. In the event this AGREEMENT extends into. succeeding fiscal year periods and the Board of Supervisors does not allocate sufficient funds for the next succeeding fiscal year's payments, the affected services shall be terminated as of June 30 of the then current fiscal year. COUNTY shall notify ATTORNEYS in writing of such non- allocation at the earliest possible date. 11 . Default for Insolvency COUNTY may cancel this AGREEMENT for default in the event any of the following occur: A. ATTORNEYS' insolvency - ATTORNEYS shall be deemed to be insolvent if they have ceased to pay their debts in the ordinary course of business or cannot pay their debts as they become due, whether they have committed an act of bankruptcy or not, and whether insolvent within the. meaning of the Federal Bankruptcy Law or not; EXHIBIT R Page 3 • B. The filing of a voluntary petition for reorganization or bankruptcy; C. The appointment of a Receiver or Trustee for ATTORNEYS; D. ATTORNEYS' execution of an assignment for the benefit of creditors. 12. Nondiscrimination in Employment A. ATTORNEYS certify that all persons employed by ATTORNEYS, their affiliates, subsidiaries or holding companies are and will be treated equally by them without regard to or because of race, religion, ancestry, national origin, sex, age, condition of physical handicap, marital status or political affiliation, and in compliance with all applicable Federal and State antidiscrimination laws and regulations. B. ATTORNEYS shall take affirmative action to ensure that qualified applicants are employed and that employees are treated during employment without regard to race, religion, ancestry, national origin, sex, age, condition of- physical handicap, marital status or political affiliation. Such action shall include, but not be limited to, the followings employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. C. ATTORNEYS shall deal with their subcontractors, bidders or vendors without regard to or because of race, religion, ancestry, national origin, sex, age, condition of physical handicap, marital status or political affiliation. D. ATTORNEYS shall allow COUNTY representatives access to their employment records during regular business hours. to verify compliance with the provisions of this Paragraph when COUNTY requests. E. If COUNTY finds that any of the above provisions has been violated, such shall constitute a material breach of contract upon which COUNTY may determine to cancel, terminate or suspend this AGREEMENT. While COUNTY reserves the right to determine independently that the antidiscrimination provisions of this AGREEMENT have been violated, in addition, any determination by the California Fair Employment Practices Commission or the Federal Equal Employment Opportunity Commission that ATTORNEYS have violated 'State or Federal antidiscrimination laws or EXHIBIT R Page 4 regulations shall also constitute a finding by COUNTY that ATTORNEYS have violated the antidiscrimination provisions of this AGREEMENT. F. In the event ATTORNEYS violate the antidiscrimination provisions of this AGREEMENT, COUNTY shall, at its option, be entitled to a sum of Five Hundred Dollars ($500.00) , pursuant to California Civil Code Section 1671, as liquidated damages in lieu of canceling, terminating or suspending this AGREEMENT. 13. Assurance of Compliance with Civil Rights Laws ATTORNEYS assure that they shall comply with Subchapter VI of the Civil Rights Act of 1964, Title 42 of the United States Code Sections 2000e through 2000e(17) , to the end that no person shall, on the grounds of race, religion, ancestry, national origin, sex, age, condition of physical handicap, marital status or political affiliation, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under this AGREEMENT or under any project, program or activity supported by this AGREEMENT. ' 14 . Conflict of Interest/Contracts Prohibited A. ATTORNEYS represent and warrant that no COUNTY employee whose position in COUNTY enables him/her to influence the award of this AGREEMENT or any competing agreement, and no spouse or economic dependent of such employee, is or shall be employed in any capacity by ATTORNEYS, or shall have any direct or indirect financial interest in this AGREEMENT. B. ATTORNEYS represent and warrant that they are aware of, have read and will comply with COUNTY'S Outside Legal Counsel Conflicts and Interest Policy adopted by COUNTY'S Board of Supervisors, which policy is incorporated . herein by reference as Exhibit L. C. Anyone who is a former employee of COUNTY at the time of execution of this AGREEMENT or who subsequently becomes affiliated with ATTORNEYS in any capacity (employee, associate or partner) shall not 1) participate in the services provided by ATTORNEYS to COUNTY, and 2) become a partner, shareholder or otherwise share in the profits of ATTORNEYS for a period of one year from the date the former COUNTY employee left COUNTY employment. EXHIBIT K Page 5 A:\BR-K.EXH 15 . Confidentiality A. ATTORNEYS shall maintain the confidentiality of all information which it may acquire arising out of or connected with activities under this AGREEMENT in accordance with all applicable Federal, State and County laws, regulations, ordinances and directives relating to confidentiality, including the Code of Professional Responsibility, ATTORNEYS shall. inform all of its principals, employees and agents providing services hereunder of the confidentiality provisions of this AGREEMENT. B. These confidentiality obligations shall survive this AGREEMENT'S termination or expiration. 16 . 'Communications with COUNTY ATTORNEYS recognize that their relationship with COUNTY and its agents and employees, officers and/or representatives is subject to the attorney-client privilege and that any information acquired during the term of this AGREEMENT from or through COUNTY is confidential and privileged. ATTORNEYS warrant that they shall not disclose or use in any manner whatsoever any of the information from COUNTY officers, employees, and agents in connection with said relationships or proceedings. ATTORNEYS understand that the County Counsel is the legally empowered legal representative of the COUNTY and its officers and employees and ATTORNEYS shall not without specific direction from the County Counsel communicate with, advise or represent the COUNTY, its Board of Supervisors or other officers or employees. 17 . Authorization Warranty ATTORNEYS represent and warrant that the signatory(s) to this AGREEMENT are fully authorized to obligate ATTORNEYS and that all corporate acts necessary to the execution of this AGREEMENT have been accomplished. 1S . Chances and Amendments of Terms COUNTY reserves the right to change any portion of the work required under this AGREEMENT, or amend its terms and conditions as may become necessary. Any such revisions shall be accomplished in the following manner: A. For any revision that affects the services and responsibilities, payments, terms, or any condition included in this AGREEMENT, COUNTY and ATTORNEYS shall negotiate a modification (amendment) to this AGREEMENT. EXHIBIT R Page 6 B. For any change which does not affect the services and responsibilities, payments, terms, or any conditions included in this AGREEMENT, the party requesting, the change shall send a letter stating any proposed change. 19. Validity The invalidity in whole or in part of any provision of this AGREEMENT shall not void or affect the validity of any other provision. 20. waiver No waiver of a breach of any provision of this AGREEMENT by either party shall constitute a waiver of any other breach of the provision or any other provision of this AGREEMENT. `Failure of either party to enforce any provision of this AGREEMENT at any time shall not be construed as a waiver of that provision. COUNTY'S remedies as described in this AGREEMENT shall be cumulative and additional to any other remedies in law or equity. 21. Remedies Reserved to COUNTY The remedies reserved to COUNTY shall be cumulative and additional to any other remedies provided in law or equity. EXHIBIT R Page 7 � r OUTSIDE LEGAL COUNSEL CONFLICTS OF INTEREST POLICY It is the policy of the Contra Costa County Board of Supervisors, on behalf of the County and all other governmental entities of which it is the governing board, to prohibit the employment by any law firm adverse to the County while simultaneously being employed by the County, unless the Board is advised of, and gives specific consent to, such adverse employment. Any law firm responding to a request for proposal or contract offer shall disclose all present and contemplated employment which is or may be adverse to the County. Any law firm which has been retained by the County which desires employment which is or may be adverse to the County shall transmit a statement of such desire to the County Counsel prior to undertaking such employment. The statement shall include a description of the employment and the reasons, if any, why the County should consent. The County Counsel will forward the request to the Board of Supervisors with recommendation for action. If 'the Board of Supervisors declines to consent to the employment, the law firm shall decline any such employment or shall not represent the County. The authority to give consent of the County is not delegated to any office or employee of the County. The County recognizes that this policy may exceed the Rules of Professional Conduct 4-101 and 5-102 of the State Bar of California. Where applicable, law firms employed by the County shall comply with such Rules in securing necessary consent from their other clients. Agency and Department heads are directed to disseminate this policy to currently employed counsel and include a statement of this policy in future requests for proposals and contracts with outside counsel. Specifically, and in addition, a law firm employed as bond counsel cannot represent, in the bond issue or any other matter, any other participant in the bond issue without specific consent of this Board. EXHIBIT L A:\BR-L.EXH c � -J `4, • rTA COUNC CONTRA COSTA COUNTY RISK MANAGEMENT DIVISION LIABILITY CLAIMS MANUAL JULY, 1990 i 1 � e LIABILITY CLAIMS MANUAL This claims manual was developed by Risk Management, in consultation with County County Counsel. It provides written procedures, guidelines, duties and responsibilities .for handling liability claims filed against the County. "AIWl4, JL County Administrator County Counsel <"L lliskV4nager r ' u << COUNTY OF CONTRA COSTA CLAIMS MANUAL INTRODUCTION The purpose of this manual is to -define the procedures for claims handling, litigation control and reserving on third party liability actions against the County. Claims and subsequent litigation should be handled in a consistent and cost effective manner. Consistency requires a workable claims philosophy. The County' s philosophy can best be summarized as tough, but fair. First, every effort must be made . to identify potential liability as quickly as possible. This allows the County to consider settlement in a timely and cost effective manner. Second, County employees must be sensitive to the public interest that is part of the government function. Third, we must place the strongest emphasis on loss prevention/control. The best remedy for the illness of a litigious society is to avoid or reduce risks through loss prevention. This is a task for all County employees including our legal representatives, claims personnel and department management. Fourth, we must be proactive and creative in the handling of our third party cases. t July, 1990 `� .r ". - � .. " . r � a' ._,. . . 11 TABLE OF CONTENTS Section I - County Adjusting Procedures Section II - Litigation 1. Department Representatives 2 . Administrative Bulletin 18.2 - Lawsuits Against the County and Against County Employees 3. Quarterly Litigation Status Reports Section III - Claims Committee Section IV - Board Approved Settlement Procedure Section V - Subpoena Policy 0. SECTION I COUNTY ADJUSTING PROCEDURES A. RECEIPT OF CLAIM Claims are received and processed by the Clerk of the Board. Copies of the claim are sent to County Counsel and Risk Management. B. ADJUSTING GUIDELINES The assigned adjuster is required to initiate a file evaluation and consider contact within 24 , hours of date of assignment. o Contact with claimant or legal representative; o Determine the extent of personal injury or property damage; o Contact the appropriate County department or facility; o Site inspection/photographs/measurements of the accident scene; o Collection and review of pertinent reports (police, coroners and internal County documents) ; o Contact and interview independent witnesses. Statements are to be taken if the information is favorable to comparative negligence evaluation. Statements can be taken either in a written or recorded format. The. format will be determined by the field adjuster with consideration given to degree of favorable information, vocal characteristics and time available with the witness. P Statements should normally be taken in person to give the adjuster time to study demeanor of the witness for deposition or trial purposes. Telephone statements should be taken from reluctant witnesses only as a last resort. The adjuster should prepare for interviews and statements in the same manner an attorney prepares for. a deposition. All reports should be carefully reviewed, salient liability issues identified and a list of questions prepared to pin down these issues. ( The adjuster should not take a statement documenting harmful facts. Interviews should be documented with a detailed follow-up report. This report should be similar to a deposition report submitted by attorneys representing the County. t � e — , � t�i � { � .. � o Identification and collection of special damages documentation; o Reserves must be established at the inception of the claim. It is the responsibility of the claims staff to constantly review all information and adjust reserves when necessary. Proper reserving is essential to the financial well being of the trust funds. o The field adjuster should attempt to complete the investigation within the first thirty days. on complex cases additional investigation may be necessary as the case proceeds through litigation. The .Liability Claims Officer is responsible to make sure all investigations are completed in a timely and competent manner. C. REPORTING PROCEDURES Typed, fully captioned reports are necessary on all cases where the reserves are at $10,000, or above. On cases where the reserves are between $2,500 and $9,999, a handwritten, captioned report is sufficient. The captions should cover: 1 . RESERVES - Amount must be designated covering all potential financial exposure to litigation, including estimated liability, attorneys' fees, experts and trial costs. 2. ACCIDENT/INCIDENT - Brief description outlining the nature of the accident/incident. For example, the case should be identified as an automobile accident, civil. rights case, etc. It should also include the _ date and time of the alleged exposure. 3 . ACCIDENT LOCUS - Detailed description of the incident scene in narrative form. Photograph Any comments on photographs in file should be included in this subheading. Adjusters are encouraged to use a narrative style to assist our attorneys in understanding the nature and extent of the photographic evidence. Diagram The same comments are applicable to the use of diagrams. Diagrams are extremely important to accident analysis and trial preparation. Every t effort should be made to assure the diagram is done to scale. 4 . CLAIMANT/PLAINTIFF This section should include the full legal name, nick names, current home and work addresses, work and home telephone numbers, date of birth, social security number and place of employment. Other pertinent biographical data would include next of kin, physical and vocal demeanor and unusual characteristics. This information is essential to evaluating the person as a witness on his own behalf. It is also important to. assist in further investigation and the possible service of legal documents in the future. Injury This caption should be used to summarize the injuries,. treating physicians and diagnostic and prognostic information. Include the addresses and telephone numbers of treating physicians. This section is also appropriate regarding the summary of statements/interviews. Legal Representation The name, address and telephone number of each. legal representative. Comments are welcome �.. regarding claimant/plaintiff legal representation and a summary of the opposing attorney' s legal analysis. This summary should include the strengths and weaknesses of the opposition' s position. 5. WITNESSES Each witness should be identified by name, address and telephone number under a separate subheading. The same biographical data is requested as outlined under CLAIMANT/PLAINTIFF captioned heading. This information is essential in evaluating the witness for potential deposition and trial testimony. The above information is also helpful in locating a relocated witness. 6. RECOMMENDATIONS/CONCLUSIONS The caption, while widely used in the industry, is rarely wisely used. This is the opportunity to make your recommendations on the progress of case, liability analysis, use of experts and direction to legal counsel. - It is the l opportunity to be..creative and concise. _. ' ,. . ' . � .:a�, � :��' �. . . i.. _ � ' / � � D. SETTLEMENT/NEGOTIATION AUTHORITY The Contra Costa County Superior Court is operating under the "Fast Track Civil Litigation Protocol," mandated by the State , of California under AB 3300. All Summons and Complaints must be served within 45 days of the Complaint being filed. Eighty-five percent of all cases must reach final disposition within one year of the date of filing. This means that our reporting requirements must be strictly aligned with the court' s time requirements to support the legal representatives of the County.-- E. ounty.-E. FINAL REPORTS Memorandums must be sent to the attention of County Counsel documenting the closing of all claims involved in litigation. The memorandum should include a brief description of the case along with the deposition facts. F. SETTLEMENT AUTHORITY The authority for the liability adjusters remains at $2 , 500. Higher authority must be obtained from the Claims Committee and Board of Supervisors as required under current procedures. G. NEGOTIATIONS The conduct of settlement negotiations prior to litigation is Risk Management' s responsibility except, as may be expressly agreed otherwise. The progress of the case must be closely monitored by the claims staff. Settlement negotiations will commence when strategically appropriate. Defense attorneys representing the, County should be involved in the evaluation and formulation of settlement negotiations. Normally, cases which will require Board approval should also be presented to the Claims Committee prior to the . initiation of settlement discussions. The actual settlement negotiations will usually be handled by the Risk Management staff. The use of structured settlements and alternative dispute resolution is strongly encouraged as a cost savings method on cases where exposure exists. H. RELEASES/DISMISSALS A properly executed release and endorsed Request for Dismissal must be on file with . the County prior to settlement payment. i � C .. ., � .. t. ., � .. SECTION II LITIGATION A. SERVICE When a Summons and Complaint is served, the Clerk of the Board should forward copies to County Counsel and Risk Management - immediately. County employees individually served should follow Administrative Bulletin No. 18.2, a copy of which is attached. It is essential to know the date and time of personal service since state court responsive pleadings are due in 30 days from the date of service. Actions involving the Federal Court require a responsive pleading in twenty days. Therefore, legal papers should be transmitted as soon as possible to allow time for a review and assignment to defense counsel. B. DEFENSE ATTORNEY ASSIGNMENTS Unless County Counsel retains the case, defense attorney assignments will be made by or with the approval of the Liability Claims Officer, either to attorneys under contract with the County, or to County Counsel. Assignments to outside attorneys will be made- with the concurrence of County Counsel on cases with an exposure over $100,000 or where issues - of County policy are involved. Assignments to the internal staff of County Counsel' s C_ office will be made with concurrence of County Counsel. C. DEFENSE ATTORNEY REPORTS 1. Initial Report Attorneys representing the County are required to - submit their initial liability analysis and discovery plan, .in writing, within 45 days of receipt of the assignment. The liability analysis should include specific theories of negligence and comparative negligence and any request for additional investigation. 2. Quarterly Status Reports Quarterly. Litigation Status Reports are required on all fides. The following standard Risk Management form can be used or the format can be transferred to a word processing format. The Litigation Suit Status Reports are required at the beginning of the quarter. It is only necessary to report on actual developments in the case. However, written reports are essential to proper file documentation and reserving. Periodic telephone reports are desirable, but may not be substituted for timely written reports. The policy of the County is to ` be proactive regarding development of a case. It is not desirable to take a passive role.. The County must create and implement a strategy to bring the matter to conclusion. _ � 1 � � ` � . Witness Reports A report on witnesses is required within six months of the case assignment, covering information not included in the adjuster' s report. The witness report should include as to every prospective witness: 1 . Full current and prior legal name; 2, Current address; 3 . Past address going back not less than five years; 4 . Work and home telephone numbers; 5. Next of kin; 6 . Date of birth; 7. Social Security Number; 8 . Driver' s License Number; 9. Physical description; 10 . Personality traits; 11 . Vocal characteristics; 12 . Summarize your impressions of witness strengths and weaknesses regarding testimony; 13 . All salient testimony which would clarify liability exposure or damages. This report should be updated .when important additional information is obtained. The above information is important. First, witnesses often relocate over the period of litigation. The above information is helpful in locating and serving the witness for trial C, testimony. Second, the manner of appearance is crucial in evaluating the file for reserving and tactical purposes. The decision of whether to try a case is directly interrelated to the strength of witness testimony. 4. Distribution A copy of each- report must be sent to the appropriate departmental representative ( list attached) . D. DEFENSE ATTORNEY EXPENSES Authority must be obtained from Risk Management prior to the hiring of outside experts or investigators.. Since depositions involve a major legal expense, authority must be obtained from Risk Management prior to taking deposition testimony. E. DEFENSE ATTORNEY SETTLEMENT AUTHORITY . Defense attorneys have settlement authority up to $2,500 subject to informal (telephone is o.k. ) approval by the responsible adjuster. Settlements exceeding $2 , 500 to $20, 000 must be approved by the County Administrator through the Claims Committee. Settlements exceeding $20 , 000 must be approved by the County Administrator (Claims Committee) and by the Board of Supervisors. Settlement negotiations shall be subject to handling by Risk Management staff as well as counsel. �f. 1 f'r .. ��. W F. RELEASES/DISMISSAL A properly executed release and endorsed Request for Dismissal must be on file with the County prior to settlement payment. . i DEPARTMENT REPRESENTATIVES Animal Services - Director 646-2935 Community Development - Director 646-2026 Community Services - Director 646-5545 County Clerk - 646-2950 District Attorney- 646-4518 Fire Districts of Contra Costa County: Bethel Island Fire Protection District - Chief 684-2211 Byron Fire Protection District - Chief 634-4833 Consolidated Fire Protection District - Chief 930-5500 Crockett-Carquinez Fire Protection District - Chief _ 787-2717 East Diablo -Fire Protection District - Chief 634-3400 Kensington Fire Protection District - Chief 527-7300 Moraga Fire Protection District. - Chief - 376-5454 Orinda Fire Protection District - Chief 254-1110 Riverview Fire Protection District - Chief 757-1303 Rodeo-Hercules Fire Protection District - Chief - 799-4561 San Ramon Valley Fire Protection District Chief 838-6600 Tassajara Fire Protection District - Chief 829-4581 West County Fire Protection. District - Chief 620-6990 General Services - Director 646-4920 Health Services - Merrithew Hospital - Records 646-4222 x 190 Library - Adm. Services Officer 646-6423 Probation - County Probation Officer 646-2700 Public Defender - 646-2490 Public Works - Deputy Director - 646-4470. x 204 Inverse condemnation and bodily injury cases for Flood Control District and Department of Public Works Deputy Director - 646-4470 x 204 Road Condition Cases Sheriff-Coroner & Contract Police Services - 646-2346 Departments are encouraged to contact County Counsel or Risk Management to discuss situations which might create an exposure to the County. Lawsuits can often be avoided when potential liability is recognized in the early stages. i l inistrative Bulletin Contra Number 18 . 2 Replaces 18 . 1 Office of the County Administrator Costa Date 9-15-86 County Section Admin. SUBJECT: Lawsuits Against the County and Against County Employees GENERAL The following procedures shall apply when any legal papers except subpoenas (e.g. , claims, summonses, complaints, writs or court orders) are served upon county officers and employees in their capacity as officers and employees and relating to their county employment. Please note that County officers and employees, other than the Chair and the Clerk of the Board of Supervisors, are not authorized or obligated to accept service on behalf of the County, and should not do so. 2 . COURT PAPERS A. Personal Service 1. Definition. Personal service occurs when there is personal delivery of copies of a summons and complaint or other legal paper to the private or official person being served. (Code of Civil Procedure (CCP) Section 415 . 10) . 2. Procedure. The procedure to be followed is: a. The person served shall immediately make a note on the papers of the time and place of service, and deliver them to his supervisor, who -shall immediately deliver them to the department head. b. Make two or three copies of the papers; one for the County Administrator; and if the person served is named individually, one for the person served. C. The original papers received shall be delivered to the County Counsel' s Office on the date of service ( if possible) , but no later than the next working day. Time is of the essence. 2 " B. Substitute Service 1 . Definition. Substitute. service is service on a substitute for the named person, and it occurs by leaving a copy of the summons and of the complaint, during usual office hours, with the person who apparently is in charge in the office of the person to be served, and thereafter mailing copies to the person to be. served at the place where the copies were left (CCP Section 415. 20 [a) ) . 2 . Procedure a. Upon initial receipt of the papers that have been left, follow the procedure for personal service (Section I . A. 2. ) . b. Upon receipt of the mailed copies: ( 1) Make a note on the mailed papers of the date and time received and of the date mailed - postmarked of available) . ( 2) Deliver the mailed papers to the County Counsel' s Office (together with the envelope in which they were received) on the date received ( if possible) , but no later than the next working day; time is of the essence. ( 3 ) It is not necessary to make copies of the papers received by mail. - C. Mail, and Acknowledgement of Service 1. Definition. Mailed service occurs when a copy of the summons and complaint is received in the mail by the person served together with two copies of the "Notice and Acknowledgement of Service" with a return envelope, postage prepaid, addressed back to the sender ( CCP Section 415. 30) . 2 . Procedure: Do not fill in or return any acknowledgment of service. a. The person opening the mail shall immediately deliver the papers to his supervisor, who shall immediately deliver them to the department head. 3 b. Make two or three copies of the papers; one for the department files, one for the County Administrator, and if the person served is named individually, one for the person served. C. Deliver the original papers received to the County Counsel's Office on the date received (if possible) , but no later. than. the next working day. Do not fill in or return the "Notice of Acknowledgement of Service." II . REQUEST FOR COUNTY DEFENSE A. Request. If an officer or employee is individually named and desires the County to defend him against the action, he must make a written request for defense ( see attached sample) to the County Administrator, Risk Management Division. The officer or employee is not required to make this request, that is, to tender his individual defense to the County; but unless the employee does so, the County is not required to defend him in the action or to pay a judgement against him. B. County' s Self-Insurance •and Punitive Damages. The County' s self-insurance program for public liability covers officers and employees against public liability claims arising from their County employment. However, the self-insurance coverage does not include punitive, or exemplary damages. If the Board of Supervisors finds that: (1) at the time of the act or ommission, the employee was acting within the scope of employment; ( 2) the employee was acting in good faith and in the apparent best interest of the County; and ( 3) payment of the claim• or judgment is in the best interest of the County, the Board may, in its discretion, authorize the payment by the County of punitive or exemplary damages awarded against a County employee. Otherwise, officers and employees are personally liable for damages awarded against them by way of punishment or example. ------------- Phil AatChelor, 1 County Administrator Orig. Dept. : County Counsel Reference: Government Code Sections 825 , 960 . 2 , 995 Board of Supervisors Resolution No. 85/551 . �'. � 4 _ P.., _ � ... ..4 . .. - .. _ s y i Date: County Administrator Risk Management Division Contra Costa County Administration Building 651 Pine Street, 6th Floor Martinez, CA 94553 RE: Request for Legal Defense I have been served with a claim, complaint; or writ in the case of vs. No. In accordance with Government Code Sections 825, 960.2 and 995, I request the County of Contra Costa to provide for my i, defense in said action: Name (print) : Job Title: Work Address: Very truly yours, (signature of officer or employee) cc: County Counsel i Quarterly Litigation Status Reports are required on all files. The standard Risk Management form can be used or the format can be transferred to a word processing format. The Litigation Suit Status Reports are required at the beginning of the quarter. You will find the form attached. ATTORNEY'S SUIT STATUS REPORT INSTRUCTIONS: (A separate report is prepared for each plaintiff) All the requested information is to be supplied. If information is unavailable, the attorney completes the form excepting those areas that can't be answered at the time of this report. We realize that case development can cause revisions in the attorney's evaluation. However, "Our chances of win- ning" and "Verdict value assuming._100%-Iiabilityp-.mustbe completed on the basis of available information at-this time. CLAIM NO. nCONtMED USERVE ACCIDENT DATE PLAINTIFF(S) DEFENDANT(S) AGE: VENUE OTHER DEFENDANTS CARRIERS AND LIMITS TRIAL DATE: FIRM MEMBER TRYING CASE: TRIAL BY: ❑ JURY ❑ NON-JURY PLAINTIFF ATTORNEY AND CAPABILITIES. I All our witnesses available? will unavailability ninder defense? Will plaintiff witnesses make a Will defense witnesses make a favorable impression? favorable impression? ❑ YES ❑ NO ED YES CD NO ❑ YES 0 N C3 YES NO IS THIS A CASE OF LIABILITY? AD DAMNUM ❑ YES ❑ NO COMPENSATORY OUR CHANCES OF WINNING? ❑ PUNITIVE % ❑ OT'H E R DEMAND BY; ON 19— S OFFER BY; ON _19— S WE RECOMMEND OFFER OF S NOW, BEFORE TRIAL OF S VERDICT VALUE ASSUMING 100%LIABILITY: SETTLEMENT VALUE ASSUMING 100';LIABILITY: IF SETTLED.APPROXIMATE TOTAL FEES AND COSTS: OUR CHARGES TO DATE: IF TRIED APPROXIMATE FEES AND COSTS: INTEREST RATE AND DATE OF ATTACHMENT OF INTEREST: ACCIDENT FACTS: (USE BACK SIDE IF MORE SPACE NEEDED) CONTINUED ON BACK SIDE ► ► � I I UnIVtY J SUI 1 61 Al US REPORT A,:CIDENT FACTS (CONTINUED FROM FRONT 510E), LEGAL DEFENSES AVAILABLE: O CONTRIBUTORY NEGLIGENCE Ci-COMPARATIVE NEGLIGENCE O OTHER - EXPLAIN: �JNJURIES AND SPECIAL DAMAGES: WE SUGGEST THE FOLLOWING ADDITIONAL INVESTIGATION: - COMMENTS-SUGGESTIONS-RECOMMENDATIONS(INCLUDING ANY SUBJECTIVE FACTORS AFFECTING RESOLUTION AND COMMENTS ON CONTR46UTtONS FROM OTHER DEFENDANTS): SIGNATURE DATE it is only necessary to report on actual developments in the, cafe. However, periodic telephone reports do not supplement written reports which are essential to proper file documentation and reserving. The policy of the County is to be proactive regarding development of a case.' It is not desirable to take a passive role. The County must create and implement a strategy to bring the matter to conclusion. EXPENSES Authority must be obtained from Risk Management prior to the hiring of outside experts or investigators. Since depositions involve a major legal expense, authority must be obtained from Risk Management prior to taking deposition testimony. i SECTION III CLAIMS COMMITTEE A. POLICY Settlements exceeding $2,500 must be approved by the County Administrator. Settlements exceeding $20,000 must be approved by the County Administrator and the Board of Supervisors. The County Administrator. acts on the .advice of the Claims Committee. B. COMPOSITION The Claims Committee is designated by the Risk Manager. Usually the Claims Committee will include the Risk Manager, the responsible adjuster, a representative from the involved department, and a representative of the County Counsel. If potential settlement exceeds . $50,000, the Assistant County Administrator-Finance will be invited to attend. If potential settlement exceeds $500,000 or involves policy considerations, the County Administrator will be invited to attend. C. MEETINGS The Claims Committee will meet at the request of the County' s defense attorney or Liability Claims officer to consider settlement proposals or case strategy. The Defense Attorney will not attend the meeting unless requested by the Risk Manager, but should be available by telephone when the Committee is meeting. When a settlement for less than $20,000 is under consideration, a written settlement report is not required unless requested by the Risk Manager. All settlement proposals exceeding $20,000 must be supported by a written settlement report to the Risk Manager and a draft press release. -The Claims Committee can meet to consider settlement or trial recommendations. u° ,. r` .. � _ _ c �. .. .•,� . r SECTION IV BOARD APPROVED SETTLEMENT PROCEDURE . A. POLICY When the County Administrator approves a settlement exceeding $20, 000 or Board consideration is otherwise required, the County Administrator shall schedule a closed session of the Board of Supervisors. B. PROCEDURE 1. Request case report from adjuster or attorney. The. report should not use complicated legal or medical terminology, should not exceed two pages, and should include recommendations on claim, background/ . description of claim, evaluation, estimated value and expected cost to take to trial (if applicable) . Case report to be submitted to Risk Manager by the Wednesday before the Tuesday of the Closed Session meeting. As soon as it is received, send copies to Assistant CAO- Finance and to County Counsel with a note that report will appear on the next Closed Session agenda. 2. Request Closed Session date from CAO two weeks before the Tuesday meeting or if meeting must be scheduled sooner, state why in note to CAO. Telephone arrangements are to be made with Chief Assistant CAO before 8: 30 a.m. on the Wednesday 13 days prior to the Closed Session. Include expected time for meeting and advise of any pressing deadlines. 3. After date is - set, advise County Counsel (Vic Westman) of date of Closed Session. Include the name(s) on the suit and first name of the defendant on suit, the claim number and approximate time needed (the average is 10 minutes) . 4. Risk Management sends Board members the case report with cover memo in personal and confidential envelopes on the Thursday before the Tuesday Closed Session meeting. Copies of the report and cover memo are provided to the CAO, Asst. CAO-Finance, County Counsel, and the primary department involved. A copy of the cover memo only is sent to all other involved departments with note they may review the case report in the Risk Management Department. County Counsel also is sent a copy of the first page of the summons and complaint or on workers ' compensation cases, the WCAB number. 1. -.. a. � .. S' .�a � M ., •'i 5. Closed Session - Attended by Risk Manager, County Counsel and representative from the involved department and, if needed, the attorney and adjuster. 6. If Board authorizes settlement, Risk Management prepares a confidential Board Order which is filed in the Risk Management confidential order file. 7. Prepare or request Press Release ( 2 - 3 paragraphs) from adjuster or defense attorney. (Press Release is not needed on workers' compensation settlements. ) Review and revise release as needed. Send copy of the press release and Board Order to Asst. CAO-Finance, involved department and defense attorney with transmittal. 8. If case settles and Board Order is needed, prepare Board Order, have Risk Manager sign, and put item on agenda 12 days before the Board Session. Attach a note to Clerk of the Board stating we must have the Board Order signed and returned to Risk Management on the day of the session. (Do not attach Press Release to Board Order at this time. ) 9 . Deliver 12 copies of Press Release on letterhead to Clerk of the Board by 12 noon on the Thursday before Board meeting. 10. On cases where payment is in excess of $250 ,000, notify Auditor-Controller (Jim Weber) at least- 24 hours in advance of payment so that adequate funds are available. 11. Issue settlement checks after signed Board Order is received from- Clerk of the Board. NOTE: Dates on all above correspondence should be dates of delivery, not dates of preparation. SECTION V COUNTY COUNSEL'S OFFICE CONTRA COSTA COUNTY MARTINEZ, CALIFORNIA SUBPOENA POLICY County departments, officials, and employees often are served with subpoenas to produce county records or to appear as custodian of records in federal and state courts as well as at worker's compensation and administrative hearings, in cases in which the County is a party, as well as in cases in which the County is not a party. A subpoena demands production of records or appearance as a witness or both. A subpoena differs from a summons and complaint. This Administrative Bulletin discusses responding to a subpoena. For information on responding to a summons and complaint, see Administrative Bulletin No. 18.2. Most county records are available to the public pursuant to the Public Records Act (See Gov. Code, § 6250 et seq. ) However, certain county records are exempt from the coverage of the Public Records Act. (See, e.g. , Gov. Code, 5 6254. ) Other county records are privileged, including privileged as official information. (See Evid. Code, 5 1040. ) A partial list of records that are privileged includes Social Service Department records (see Welf . & Inst. Code, S 10850) , juvenile court records (see Welf . & Inst. Code, 5 827) , Probation Department records (see Pen. Code, S 1203.05) , and the Sheriff's personnel and internal investigation records (see Pen. Code, 5 832.7 ) . Finally, certain county records regarding individuals, e.g. , personnel records (see Gov. Code, S 6254(c).) , medical records (see, e.g. , Civ. Coder -§ 56 .10 and Welf. & Inste Code, S 5328 et seq. ) , and records regarding alcohol and drug abuse (see Health & Saf . Code, 17.95.18) , are confidential. Confidential records are privileged as to the individual and may be disclosed only with the individual's permission or under specific statutory conditions. 1. Public Records The department must produce copies of requested public records, unless such records are exempt from disclosure under the Public Records Act. If a request for records is made pursuant to the Public Records'Act, the County has 10 days to respond. (See Gov. Code, 5 6256 and Admin. Bull. No. 20. 1 . ) In unusual circumstances, by giving written notice to the requesting person, this time may be extended by 10 additional working days . (See Gov. Code, .5 6256 .1. ) If a department is in doubt about whether subpoenaed records are exempt or wishes to extend time, it should contact County Counsel. 2 . Privileged Records Unless a department has an established policy approved by County Counsel, all subpoenas received by a department for county records that are privileged, or for the appearance of the custodian of such records, should be forwarded to County Counsel immediately. (Time is of the essence because subpoenas generally must be responded to within a few days. ) County Counsel will advise the department how to respond to the subpoena, take legal action, if any is warranted, in response to the subpoena, or, if appropriate, refer the subpoena to any retained county defense counsel. No county records that are privileged should be -produced and no witness should appear as the custodian of such records in response to a subpoena without the advice of County Counsel or of the retained county defense counsel. Note, however, that a court may eventually order the records produced, at which time counsel will consult with the department involved regarding what action the department wishes to take. If a department is in doubt about whether subpoenaed records are privileged, it should contact County Counsel. 3 . Confidential Records Subpoenas for confidential county records that are not privileged as official information include: (1) Subpoenas in which a person is requesting his or her own records, e.g. , personnel or medical records, in response to which the department having custody of the records must produce copies of the requested records. (The department might wish to obtain a signed release from the person, but this is not necessary because the . subpoena itself is an adequate request. ) (2) Subpoenas in which someone other than the person is requesting that person's records, e.g. , personnel or medical records, in response to which, -1f the subpoena is not quashed by court order before the due date, the department must produce copies of the requested records. (If the person whose records are requested consents in writing to the release of his or her records, the department can produce them with or without a subpoena. ) Note that; if the records requested are "records of a consumer, " which include, among others, personnel and medical records, the County cannot produce the records unless the requirements of Code of Civil Procedure section 1985.3- are complied with by the requesting party. Section 1985 .3 requires 15 days notice and proof of service of the subpoena on the person whose records are requested or a written authorization by that person for release of the records . If a department is in doubt about whether section 1985 . 3 applies or about whether that section has been complied with, it should contact County Counsel. When producing records in response to any subpoena, in no case should the department allow the originals of the records to 2- �. . .r t .. �- . '1':.,, t - - Y leave the department. Instead, the department should either copy the records or, if this is not practical, request that the subpoenaing party have a copy service come to the department and copy the records . (Copies of public .records are legally sufficient. See Evid. Code, § 1562. ) 4 . "Witness Fees" When producing records in response to any subpoena, it is of particular importance that the department collect the appropriate "witness fees" for all records produced. For state courts, as well as for worker's compensation and administrative hearings, these fees are currently as follows: If the department copies the records, it must bill: (1) $.10 per page for the copying of documents 8 1/2 by 14 inches or smaller; (2) $.20 per page for the copying of documents on microfilm; (3) actual costs for the copying of oversized documents or the copying of documents requiring special processing; (4) reasonable costs incurred in locating and copying the records, to be billed at the maximum rate of $16 per hour per person computed on the basis of $4 per quarter hour or fraction thereof; and (5) actual postage charges . (See Evid. Code, § 1563(b) (1) . ) If the records are copied by a copying service, the subpoenaing party must be billed a fee not to exceed $15, plus, if the records are on microfilm, $.20 per page. (See Evid. Code; § 1563(b) (6) . ) In either case, all costs must be submitted to the subpoenaing party on an itemized statement (see Evid. Code, § 1563(b) (3) ) , and the department should demand payment of the statement simultaneous with the actual delivery of the subpoenaed records (see Evid. Code, § 1563(b) (2) ) : Note that the department is under no obligation to deliver the records until payment is made. (See Evid. Code, § 1563 (b) (2) . ) For federal courts, no statutory "witness fees" exist. However, the general rule is that the party producing records is entitled to the reasonable costs of production. (See, e.g. ,. Fed. Rules Civ. Proc. , Rule 45(b) . ) If the personal attendance of the custodian of records is required by ,the subpoena, the department must collect the statutory witness and mileage fees, in addition to any copying costs . (See Evid. Code, § 1563(c) . ) For state courts and for worker' s compensation hearings, the witness fee is currently $35 a day, and mileage is $.20 a mile both ways. . (See Gov. Code, § 68093; Lab. Code, § 131. ) However, for administrative hearings before the Office of Administrative Hearings and before the Contra Costa County Merit Board, County officials and employees receive neither a witness fee nor mileage if they are subpoenaed as custodian of records. (See Gov. Code, § 11510(c) ; Pers . Manag. Regs . , § 215,. 1 . ) For federal courts, the witness fee is currently $30 a day., and the travel allowance is the actual cost, if travel is by common carrier or the federal government mileage rate, plus tolls and parking fees, if travel is by private vehicle. (See 28 U.S .C. , 5 1821 . ) In all cases, the County i -3- PPPPP- u official or employee should demand the witness fee at the time the subpoena is served and should bill the subpoenaing party for travel costs immediately after appearing. PSA/jh/tb J-2s\pa\memo\9ubpena.f -4-