Attorney General Mark R. Herring today announced a series of major modernization and reform initiatives to improve the effectiveness, efficiency, and transparency of the office and to bring the operations of the state’s law firm into the 21st century.
Herring is making significant changes to the way the office operates, the way it procures and manages outside counsel, and the service it provides to its client agencies throughout state government. Many of these proposals were developed with the assistance of the expert, non-partisan review panel he appointed in February to review the operations of the office and identify areas for improvements.
“The reforms we are implementing represent the biggest advance in transparency and efficiency in this office in a generation,” said Herring. “When I came into office, I inherited a tremendous amount of human capital and legal expertise, but unfortunately the technology and support systems don’t come close to measuring up. As the person responsible for millions of taxpayer dollars, I am going to do everything I can to bring more data-driven analysis to our operations and fulfill our mission of pursuing justice, equality, and opportunity in the most efficient way possible. It’s what Virginians expect from this office, and it’s what they deserve.”
CASE MANAGEMENT SYSTEM
The Office of Attorney General is currently in the process of procuring case management and document management systems to replace the rudimentary and insufficient methods that are currently used and which often involve extensive amounts of paper copies. This is software that nearly all law firms have, but which the Office currently lacks. The case management system will make it easier to track the legal business that is before the state, ensure compliance with deadlines in court cases, identify the existence of conflicts of interest, and facilitate the sharing of information both internally and externally. It is also expected to manage Freedom of Information Act requests, improve accounting operations, and help better manage and oversee the use of outside counsel.
COMPLIANCE AND TRANSPARENCY COUNSEL
Richmond area attorney Shawri King-Casey has been hired to serve as the first Compliance and Transparency Counsel for the Office of the Attorney General. She will lead the Office’s transparency program, including compliance with responsibilities under the Virginia Freedom of Information Act and the Public Records Act, as well the Office’s public integrity efforts, such as compliance with the Conflict of Interests Act and attorney general Herring’s new ethics policy and gift ban.
She will also oversee the procurement and management of outside counsel engagements to ensure that, when outside counsel is required, taxpayers get maximum value and their interests are well served. Additional duties will include coordination of the office’s continuing legal education (CLE) program.
King-Casey served as Ethics Counsel/Conflicts Attorney for the last seven years in the Office of General Counsel at McGuireWoods, LLP and has extensive experience in criminal and civil law.
OUTSIDE COUNSEL
By law, the attorney general is responsible for providing all legal services for the Commonwealth and its agencies unless it is impracticable or uneconomical to do so. Shortly after inauguration, outside counsel was identified as an area that needed more oversight and structure, which is why the Office is instituting an official policy for engagement, management, and oversight of outside counsel. While this policy was under development, most new matters have required the approval of the Chief Deputy Attorney General.
The vast majority of outside counsel work is done either by “single case appointment (SCA)” for unique or one-time legal needs, or “solicitation for proposal (SFP)” arrangements, where the office solicits proposals and pre-approves firms to provide specialized services the Office knows it will need on a more regular basis.
While there is no reason to believe that any outside counsel has been engaged improperly or inappropriately compensated, pre-existing records and tracking/accounting procedures make it difficult to judge the effectiveness of the state’s outside counsel expenditures, which records show totaled $23.3 million in FY2012-2013, $14.8 million in FY2011-2012, and $14.4 million in FY2010-2011. Invoices for outside counsel are paid by the agency receiving services, not the Office of Attorney General.
Highlights of the new procurement policy for outside counsel include:
- Contribution blackout–No law firm, partner, or employee shall be allowed to knowingly make a financial contribution to Attorney General Herring if their firm has submitted a proposal for outside counsel work. The attorney general will return any such donations and may disqualify the firm from receiving the appointment they had sought. The blackout period shall be in effect for 60 days from the date the SFP is posted.
- Documented determination of need– Prior to employing outside counsel, the attorney general or his designee will determine, in writing, whether and why it is either impractical or uneconomical for the Office to provide legal services. Factors typically arising in such a finding include: (i) the experience, knowledge, and expertise desired by the client; (ii) the inability of the Office to provide such expertise in a timely and focused fashion that meets the needs of the client; (iii) the complexity, difficulty, novelty, or infrequency of the questions involved; and (iv) the geographic location where the legal services are needed.
- Competitive procurement–For single case appointments expected to cost less than $25,000, the office will contact at least three firms to evaluate their ability to provide the best service at the best price. For single case appointments of more than $25,000, the office will post a “Solicitation for Proposal” on the state’s official procurement portal, eVA. SFP arrangements will remain subject to competitive proposals through eVA.
- Objective evaluation– Within 30 days of receipt, competitive proposals for work will be reviewed by a panel of at least three individuals-at least two of whom shall be attorneys and one of whom may be a client agency representative-and engagement letters shall be awarded to the firm that submits the most competitive proposal to provide services considering the cost of the services, the qualifications of the attorney or firm to provide the services, the experience of the attorney or firm with similar legal matters, legal expertise generally, and other relevant factors as may be identified in the SFP. A letter of engagement under an SFP is not a guarantee of work. Attorney General Herring’s policy also establishes procedures and includes reforms to the management of outside counsel, including:
- Coordination– Outside counsel should coordinate legal strategy and decisions with the input of the assigned counsel from this Office to ensure the Commonwealth’s goals are met.
- Review of invoices–Outside counsel will submit invoices to the client agency with a copy to the Office of Attorney General. Both the client agency and the assigned counsel from this Office will review all invoices to monitor the performance, billing, and scope of the legal services. Invoice review includes an examination of (i) adherence to terms of the appointment letter regarding timekeepers, rates, and budget; (ii) efficiency of time and costs; (iii) use of appropriate personnel for tasks; (iv) compliance with SFP, travel guidelines, and the Office’s outside counsel policy; (v) permissibility of expenses; (vi) client satisfaction; and (vii) results achieved.
- Conflicts/Ethics–The existence of any actual or potential conflicts of interest involving the Commonwealth or any of its agencies or entities must be immediately reported to the Office.
Many of the Commonwealth’s current SFP arrangements are about to expire, so the Office will be putting them out for bid next month so they will be subject to these new, more appropriate policies.
CUSTOMER SERVICE MEETINGS
In the months ahead, members of Attorney General Herring’s review panel will conduct a series of meetings with client agencies to evaluate the quality of legal services the Office is providing to each agency, as well as areas of need or improvement. The panel will also work to identify any areas where outside counsel is providing legal services that could be brought in-house to save taxpayers money.
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