HomeMy WebLinkAbout072518_sa02 JEFFERSON COUNTY
BOARD OF COUNTY COMMISSIONERS
AGENDA REQUEST
TO: Board of Commissioners
FROM: Philip C. Hunsucker, Chief Civil Deputy Prosecuting Attorney
DATE: July 25,2018
RE: Opioid Crisis and Litigation—Keller Rohrback Law Firm Special Deputy
Prosecuting Attorney Retention to Represent the County
STATEMENT OF ISSUE:
Millions of Americans are addicted to prescription pain killers. These opioid drugs, such
as OxyContin, are more powerful than morphine, and can have devastating effects on the health
of those who use them. Not only are prescription opioids highly addictive, they act as gateways
to even more dangerous opioids, including heroin.
The Centers for Disease Control ("CDC") has categorized this crisis as an epidemic, and recent
statistics indicate that more than 300,000 lives have been lost to fatal overdoses between 2000-
2016, more than six times the amount of American lives lost in the Vietnam War. In addition,
approximately 289 million prescriptions were written for opioids in 2016—one for nearly every
person in this country. During this same time, sales of opioids quadrupled between 1999 and
2010, and the percentage of people who took painkillers stronger than morphine jumped from 17%
to 37% in the same period.
People addicted to opioids face disastrous risks. First, it is not difficult to overdose on an
opioid, with fatal results. Second, when insurance stops paying for opioids, or a doctor refuses to
refill an addict's prescription, he or she faces a terrible choice—find illegal sources of
prescription painkillers or switch to less expensive, more dangerous substitutes, such as another
opioid: heroin.
We believe opioid manufacturers have endangered the lives and wellbeing of millions of
Americans, and created a new generation of drug addicts, with a host of resulting consequences,
including increased crime and homelessness, dramatic drug treatment costs, and lost
productivity. We believe this is because a handful of drug companies deliberately and knowingly
lied about the risks of their products in order to generate record profits.
The opioid crisis already has come to Jefferson County—at it is likely to get worse. The crisis has
and will seriously impact the County's resources, particularly in the Sheriffs Department and in
Public Health.
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The Sheriff, Public Health Officer, Public Health Director and the Prosecuting Attorney all support
the County's participation in the opioid litigation.
The Prosecuting Attorney recommends that the Board of County Commissioners ("BoCC")
approve the law firm of Keller Rohrback (https://www.kellerrohrback.com/)to act as a special
deputy prosecuting attorney pursuant to RCW 36.27.040 to represent the County in the opioid
litigation.
ANALYSIS:
RCW 36.27.040 provides, in its relevant part:
The prosecuting attorney may appoint one or more special deputy prosecuting
attorneys upon a contract or fee basis whose authority shall be limited to the
purposes stated in the writing signed by the prosecuting attorney and filed in the
county auditor's office. Such special deputy prosecuting attorney shall be admitted
to practice as an attorney before the courts of this state but need not be a resident of
the county in which he or she serves and shall not be under the legal disabilities
attendant upon prosecuting attorneys or their deputies except to avoid any conflict
of interest with the purpose for which he or she has been engaged by the
prosecuting attorney. The prosecuting attorney shall be responsible for the acts of
his or her deputies and may revoke appointments at will.
The Prosecuting Attorney agrees that Keller Rohrback should be appointed a special deputy
prosecuting attorney pursuant to RCW 36.27.040, provided:
(1) The Board of County Commissioners approves the funding of and reasonable terms for the
Foster Pepper contract;
(2) Keller Rohrback is subject to the supervision of the Prosecuting Attorney or designee; and,
(3) Keller Rohrback agrees to reasonable billing guidelines and other reasonable contract
provisions.
Keller Rohrback is particularly well suited to the appointment as a special deputy prosecuting
attorney for this project for at least the following reasons:
• Keller Rohrback has an outstanding representation for representing public entities in
complex litigation.
• Keller Rohrback already represents many public entities in the opioid litigation, including
a number of counties. Among Keller Rohrback's existing clients in the opioid litigation
are King, Pierce, Spokane, Clark, Thurston, Skagit, and Clallam Cotulties, as well as the
Cities of Tacoma, Mount Vernon, Sedro Woolley, Burlington, and Anacortes.
• Keller Rohrback is one of the firms that has been selected by the Court to the Plaintiffs
Executive Committee to manage the litigation on behalf of all plaintiffs that have filed suit.
Keller Rohrback is leading committees on settlement, damages and legal issues. Jefferson
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County's interests would be directly represented in the national litigation if it retained
Keller Rohrback as outside counsel for this litigation.
In short, Keller Rohrback is a highly regarding law firm with extensive applicable experience, that
is positioned in the litigation to well represent Jefferson County's interests.
Keller Rohrback possesses the necessary depth of experience in the law and litigation concerning
the opioid crisis and litigation required that the Prosecuting Attorney's Office lacks.
The proposed contract attached as Appendix 1 meets the three requirements outlined above.
FISCAL IMPACT:
The proposed contract with Keller Rohrback is a contingent fee contract, so attorney's fees will be
paid only if there is a recovery in the litigation. Also, under the proposed contract, Keller
Rohrback would front all costs, until there is a recovery. The County's ultimate exposure for
costs, if the litigation is not successful will be minimal because under the proposed contract, the
costs will be shared with other plaintiffs, including Keller Rohrback's other clients and the County
would be responsible only for its fair share of the total costs incurred by Keller Rohrback subject
to a formula favorable to the County.
RECOMMENDATION:
Approve the contract in Appendix 1 for Keller Rohrback to be paid as a special deputy prosecuting
attorney for the purpose of representing the County in connection with the opioid litigation.
DEPARTMENT CONTACT:
Philip C. Hunsucker, Chief Civil Deputy Prosecuting Attorney at Extension 219.
REVIEWED BY:
,0111
7/;-
Philip Morley, CIO' dministrat Date
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APPENDIX 1
ATTORNEY ENGAGEMENT & CONTINGENCY FEE AGREEMENT
It is HEREBY ACKNOWLEDGED AND AGREED by and between Jefferson County
(“Client”) and Keller Rohrback L.L.P. (“Attorneys”) as follows:
Employment.
1. Client hereby retains Attorneys to represent Client with respect to
manufacturers and wholesalersof prescription opioid
potential claims against the
painkillers and other related defendants as agreed between Client and Attorneys
(“Opioid Claims”). Attorneys will assist Client in gathering information and data
relevant to Client’s potential Opioid Claims. Attorneys will also advise Client with
respect to those potential Opioid Claims. At Client’s request, Attorneys will institute
proceedings to seek remedies on Client’s behalf as Client and Attorneys conclude is
appropriate and advisable (“the Lawsuit”).
Responsibility of Attorneys.
2. Although the individual attorneys listed below will be
primarily responsible to represent Client in this matter, other members of Keller
Rohrback may work on Client matters in accordance with their areas of practice. The
primary attorneys representing Client are Derek Loeser, David Ko, and Daniel
Mensher. Attorneys will consult with Client in connection with any settlement proposal
before accepting same.
If Attorneys become aware of any potential conflicts of interest between the Client and
any other client of the Firm in the opioid litigation either prior to Attorneys
commencing service for Client or during the course of litigation, Attorneys will
immediately provide Client with all necessary information regarding the potential
conflict.
Responsibility of Client.
3.
a.Client will maintain control of the litigation. Client agrees to timely comply with
Attorneys’ request.
b.Client agrees to advise Attorneys of all facts, knowledge, or information relevant to
Attorneys’ representation of Client, including facts, knowledge, or information
which come to Client’s attention after execution of this Agreement.
c.Client is aware that Attorneys represent several other jurisdictions in Washington
State involved in similar litigation.
Client Representative.
4.Client designates the Chief Civil Deputy Prosecuting Attorney
to be the Client’s Representatives. The Client’s Representatives are responsible for
receiving all communications from Attorneys and transmitting all communications
from Client to Attorneys. Client agrees that Attorneys may rely on either of Client’s
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Representative’s statements as an accurate reflection of Client’s position and desires.
Attorneys agree to keep the Client’s Representatives informed of all significant
developments regarding the representation.
Attorneys’ Fees.
5. Other than as set forth in Section 8, the fees that Client agrees to pay
Attorneys (“Attorneys’ Fee” or “Attorneys’ Fees”) will depend on the outcome of the
Lawsuit, as set forth here:
a.“Sums Recovered” means all monies (and the value of any other property)
actually paid in settlement of or judgment on the Lawsuit’s claims (including
the settlement of any demand made by Attorneys on Client’s behalf before
initiation of the Lawsuit), including any monies paid in settlement or judgment
as an award of attorneys’ fees, costs, or interest.
b.If the Sums Recovered is an amount less than or equal to $10 million, the
Attorneys’ Fee shall be 20% of the recovery;
c.If the Sums Recovered is an amount greater than $10 million but less than or
equal to $20 million, the Attorneys’ Fee shall equal the amount specified in
Section 5(b) above, plus 18% of any Sums Recovered in the $10 million to $20
million range.
d.If the Sums Recovered is an amount greater than $20 million but less than or
equal to $25 million, the Attorneys’ Fee shall equal the amount specified in
Sections 5(b) and 5(c) above, plus 15% of any Sums Recovered in the $20
million to $25 million range.
e.If the Sums Recovered is an amount in excess of $25 million, the Attorneys’
Fee shall equal the amount specified in Sections 5(b), 5(c), and 5(d) above, plus
10% of any Sums Recovered in excess of $25 million.
f.If the Lawsuit proceeds to trial and the court awards Client a monetary
judgment and an attorneys’ fee, and the attorneys’ fee is greater than the
percentage Attorneys would be entitled to under Section 5(a)-(e), then
Attorneys will be entitled to the full attorneys’ fee awarded by the Court.
NO ATTORNEYS’ FEES SHALL BE PAID IF NO RECOVERY IS MADE.
Advice Concerning Attorneys’ Fee.
6. Client has been informed of the alternative of
employing Attorneys on an hourly fee bases. This alternative would require the
payment of a $25,000 retainer at commencement of the representation, payment of
costs as incurred, and payment of legal fees each month for legal services. In deciding
to engage Attorneys on a contingency fee basis, Client has considered the risks
involved in this case, the experience and reputation of Attorneys, and the uncertainty
regarding the number of hours required to prosecute the case.
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Costs.
7.
a.Attorneys will advance all “out-of-pocket” costs, fees, and expenses incurred by
Attorneys in pursuing the Lawsuit (“Costs”). Client will not be required to pay any
Costs on an ongoing basis for the reasons discussed in Section 7(g).
b.Client understands that Attorneys shall seek reimbursement from defendants for all
Costs actually expended, but that there is no guarantee that Costs will be
reimbursed by the defendants to Attorneys.
c.Subject to the fair share limitation of Section 7(g), Attorneys shall be reimbursed
for all Costs out of any settlement or recovery in addition to any Attorneys’ Fees
they receive under Sections 5 or 8, as the case may be.
d.Subject to the fair share limitation of Section 7(g), Attorneys shall be reimbursed
for Costs first, from any monies paid by a defendant on account of Costs
reimbursement and, if such monies are insufficient, from any monies paid as part of
the Sums Recovered.
e.Attorneys may, with Client’s prior consent which shall not unreasonably be
withheld, hire any expert or consultant whose services Attorneys advises Client is
necessary for the evaluation or prosecution of any of the claims within the scope of
the Lawsuit.
f.To the greatest extent reasonably possible, Attorneys shall work to incur costs
jointly with other plaintiffs, first with other plaintiffs who have Opioid Claims that
are not clients of Attorneys and, then among other plaintiffs who have Opioid
Claims that are clients of Attorneys.
g.Client shall be liable only for its fair share of Costs for Opioid Claims. Attorneys
and Client agree it is impossible to determine what Client’s fair share will be at this
time. Therefore, Client’s fair share of Costs to be shared with other plaintiffs who
have Opioid Claims shall be determined according to a formula to be agreed upon
later between Client and Attorneys. However, if Client and Attorneys are unable to
agree on a formula for determining Client’s fair share, then the formula shall be the
ratio of Client’s total population in the latest United States census, compared to the
total population of all the Attorney’s clients with Opioid Claims (Client’s total
population ÷ total population of all of the Attorney’s clients = Client’s fair share).
Withdrawal or Discharge.
8. Subject to Court rules and other applicable laws,
Attorneys shall have the right to withdraw from representation of Client upon giving
reasonable notice of the intention to withdraw. In the event of withdrawal of Attorneys
or discharge of Attorneys is at Attorney’s request or due to a conflict of interest that
requires Attorneys to withdraw, provided the County’s action did not create the
conflict, Attorneys may not seek reasonable fees for services rendered according to the
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terms of Section 5, unless allowed by Client. Client shall have the right to discharge
Attorneys at any time. If Client discharges Attorneys, Attorneys retain the right to seek
reasonable fees for services rendered according to the terms of Section 5, as limited by
the billing guidelines attached as Appendix A.
Venue and Attorneys’ Fees.
9. Should either party bring any legal action or breach of
this Agreement, the prevailing party shall be entitled to an award of its reasonable
attorney’s fees and court costs. All such court action shall take place and be vested
solely in the appropriate state court in Jefferson County, Washington, subject to the
venue provisions for actions against counties in RCW 36.01.050.
Outcome.
10. Attorneys do not guarantee or represent a particular result in his Lawsuit.
Client understands the risks associated with pursuing this Lawsuit.
No Other Agreements.
11. Client has read this contract, has received a copy of it, and
agrees to its terms and conditions. There are no oral or other agreements between
Client and Attorneys. This Agreement when signed below by Client replaces any prior
understandings or oral agreement between Client and Attorneys.
Governing Law.
12.This Agreement and all aspects of the parties’ relationship shall be
construed under the laws of the State of Washington, without regard to choice of law
principles.
Signatures in Counterparts.
13. This Agreement may be executed in one or more
counterparts and transmitted by mail, overnight delivery service, and/or email, each
one of which shall constitute an original and all of which shall constitute one and the
same document.
No Third-party Beneficiaries.
14. The parties do not intend, and nothing in this
Agreement shall be construed to mean, that any provision in this Agreement is for the
benefit of any person or entity who is not a party.
Modification of this Agreement.
15. This Agreement may be amended or supplemented
only by a writing that is signed by duly authorized representatives of all the parties.
Cooperation.
16. The parties agree that they shall facilitate, in good faith, the effectuation
of this Agreement.
Voluntary Undertaking.
17. The parties acknowledge that they have read this Agreement
and are fully aware of the contents of this Agreement and its legal effect.
Investigation and Complete Understanding.
18. The parties acknowledge that they have
made such investigation of the facts pertaining to this Agreement and all matters
contained herein as they deem necessary, desirable, or appropriate. The parties
expressly understand that the facts later may turn out to be other than or different from
the facts now known or believed to be true. The parties expressly assume the risk of
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such different facts and agree that all provisions of this Agreement shall remain in all
respects effective and enforceable and not subject to termination or rescission by
reason of any such different facts.
Independent Legal Advice and Investigation.
19. In entering into this Agreement, the
parties acknowledge that they have received independent legal advice from their own
counsel and have relied on their own investigation and upon the advice of their own
attorney with respect to the advisability of entering into this Agreement.
No Oral Waiver.
20. No term or provision of this Agreement will be considered waived
by either party, and no breach excused by either party, unless such waiver or consent is
in writing signed on behalf of the party against whom the waiver is asserted. No
consent by either party to, or waiver of, a breach by either party, whether express or
implied, will constitute a consent to, waiver of, or excuse of any other, different, or
subsequent breach by either party.
Arms-Length Negotiations.
21. The parties agree that this Agreement has been
negotiated at arms-length, with the assistance and advice of competent, independent
legal counsel.
Joint Drafting Effort.
22. The parties acknowledge and agree that the drafting of this
Agreement has been a joint effort by the parties and that this Agreement shall not be
deemed prepared or drafted by any one of the parties. The terms of this Agreement
shall be interpreted fairly and in accordance with their intent and not for or against any
one of the parties. The parties further acknowledge and agree that each of the parties
possess equal bargaining power with respect to this Agreement.
Severability.
23. Provided it does not result in a material change in the terms of this
Agreement, if any provision of this Agreement or the application of this Agreement to
any person or circumstance shall be invalid, illegal, or unenforceable to any extent, the
remainder of this Agreement and the application this Agreement shall not be affected
and shall be enforceable to the fullest extent permitted by law.
Additional Documents and Action.
24. Each party to this Agreement agrees to execute,
or cause their counsel to execute on their behalf, any additional documents and to take
any further action which may reasonably be required to fulfill the obligations of the
parties under this Agreement.
Independent Contractor, Indemnity and Insurance.
25.
By accepting the terms of this contract, Attorneys warrant and agree that:
a.Attorneys are an independent contractor and no member or employee of Attorneys
shall be deemed to be an employee of Client;
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b.The work to be performed by Attorneys shall be performed only by attorneys
experienced and qualified to perform the legal services, or legal assistants under the
direct supervision and control of experienced attorneys;
c.Attorneys shall defend Client against and hold the County harmless from any claim
against Client for damages made by a vendor who provided goods or services to the
Attorneys in connection with the Opioid Claims or the Lawsuit;
d.Attorneys will have in effect professional liability insurance (“errors and
omissions”) with minimum limits of liability of at least $1,000,000. This errors
and omissions insurance shall be primary if any allegation is made of professional
malpractice arising from Attorneys’ representation of Client in the Opioid Claims
or the Lawsuit. Attorneys will place such insurance with insurers licensed to do
business in the State of Washington and having A.M. Best Company ratings of no
less than A-VII, with the exception that excess and umbrella coverage used to meet
the requirements for limits of liability or gaps in coverage need not be placed with
insurers or reinsurers licensed in the State of Washington.
e.Attorneys shall furnish the County with properly executed certificates of insurance
or a signed policy endorsement which will clearly evidence all insurance required
in this Section within 10 days after the effective date of this Agreement. The
certificate(s) or endorsement(s) shall, at a minimum, list limits of liability and
coverage. The certificate(s) or endorsement(s) will provide that the underlying
insurance contract may not be canceled, or allowed to expire, except on 30-days’
prior written notice to the County. Any certificate or endorsement limiting or
negating the insurer’s obligation to notify the County of cancellation or changes
must be amended so as not to negate the intent of this provision.
f.If applicable, the Attorney will request that the Washington State Department of
Labor and Industries, Workers Compensation Representative, send written
verification to Client’s risk manager that Attorneys are currently paying workers’
compensation.
g.Written notice of cancellation or change in errors and omissions insurance shall be
provided by Attorneys to County at the following address:
County Risk Manager
Jefferson County
P.O. Box 1220
Port Townsend, WA 98368
h.Attorneys shall provide a copy of all insurance policies required above upon
request of Client’s Risk Manager.
Appointment as s Special Deputy Prosecuting Attorney Required.
26. This Agreement
is conditioned on an appointment by the Jefferson County Prosecuting Attorney
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pursuant to RCW 36.27.040 and the billing guidelines agreed upon between us and the
Jefferson County Prosecuting Attorney’s Office, a copy of which is attached as
Appendix A. Where the agreed upon billing guidelines and the terms above conflict,
the billing guidelines control.
(SIGNATURES FOLLOW ON NEXT PAGE)
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JEFFERSON COUNTY WASHINGTON KELLER ROHRBACK, L.L.P
Board of County Commissioners
Jefferson County, Washington /
, ,-
By: By: - 07/20/2018
David Sullivan, Chair Date Signature Date
By: Name: Derek W. Loeser
Kathleen Kler, Commissioner Date
Title: Partner
By:
Kate Dean, Commissioner Date
SEAL:
ATTEST:
Carolyn Gallaway Date
Deputy Clerk of the Board
Approved as to form only:
Philip C. Hunsucker Date
Chief Civil Deputy Prosecuting Attorney
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Appendix A
Billing Guidelines for Outside Counsel Working On Behalf of Jefferson County
1.
Approval as Counsel Required Before Billing. Appointment as a special deputy prosecuting attorney pursuant to
RCW 36.27.040 must be obtained outside counsel working on behalf of Client (Attorneys) and a contract must be approved by
the Jefferson County Board of Commissioners (Board) prior to submission of any invoice for payment.
2.
Conflicts of Interest. Jefferson County (Client) expects Attorneys to be free of any conflict of interest and the
appearance of any conflict of interest during the course of representation of Client. Jefferson County recognizes that a conflict
between Attorneys and its representation of Client may arise, and Client will consider waiving a conflict of interest when
Client’s interests are not impaired or compromised. If any ethical or business conflict arises, Attorneys shall contact the
Jefferson County Prosecuting Attorney (Prosecuting Attorney) immediately.
3.
Staffing Philosophy. Attorneys are retained by Client because of their expertise in the matter for which they are
retained. Client expects that all matters handled on behalf of Client will be properly, economically and effectively staffed.
The lead or managing attorney at a firm representing Client is responsible for appropriately staffing the matter to ensure
minimal duplication of efforts and to ensure tasks are assigned to staff at the appropriate level of expertise and billing rate.
The goal is to minimize the number of timekeepers involved in the effective completion of tasks necessary for representation
in the matter.
4.
Staffing Approval. Attorneys shall propose, and the Prosecuting Attorney shall approve, the initial staffing of the
matter.
5.
Status Reporting. Attorneys shall provide status reports as required by the Prosecuting Attorney. The Prosecuting
Attorney’s strong preference is for oral, not written status reports.
6.
Settlements. No settlement can be made without obtaining a recommendation from the Prosecuting Attorney and
approval by the Board.
7.
Third-Party Vendors. No third-party vendor shall be hired for the Lawsuit without prior discussion with and
approval by the Prosecuting Attorney. Client shall not accept any invoice from a third-party vendor hired for the Lawsuit
without prior discussion and approval in advance of the initiation of billing activity by the third-party vendor.
8.
Legal Research. Legal research should be included in the Attorney’s overhead and shall not be billed to Client
without prior approval.
9.
Temporary or Contract Employees. Temporary or contract employees (including summer associates) shall not be
used by Attorneys without prior approval of the Prosecuting Attorney. Client shall only pay the actual cost of temporary or
contract employees.
10.
Rates. Client shall pay Attorneys based on hourly rates or flat fees previously approved by Client, as set forth in a
written document sent to the Prosecuting Attorney. A request to increase hourly rates may be made by Attorneys once per
year during the term of the engagement. No unilateral rate increase shall be honored. Long-term travel of more than 50 miles
(100 miles including the return) shall be billed at ½ the hourly rate, when the timekeeper cannot bill for the work.
11.
Billing Procedure. Client shall pay only for the actual, reasonable and necessary work spent completing at task or
series of tasks. Each billing entry shall list the date, the identity of the timekeeper and the task being billed in a manner
sufficient for Client to determine what task was accomplished and why the work was necessary for the progress of the matter.
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Duplicate work by multiple timekeepers or the same timekeeper shall not be billed. The minimum billing entry shall be 0.10
of an hour. Tasks on a given day that take less than one minimum entry shall be grouped as one minimum entry. Each
individual task (or a grouping of minimum tasks) shall be stated separately for each timekeeper on an invoice. Expenses shall
be separately documented, billed and copies of the receipts, invoices, or other backup for the expenses shall be provided with
each invoice.
12.
Overhead Expenses Not Reimbursable. Unless approved in advance by Client, overhead expenses are not
reimbursable and include but are not limited to: Internal copying or scanning costs of over 10 cents per page; costs for
converting paper materials in to electronic materials and vice versa; overtime charges for salaries, meals or transportation, rent
or utilities; continuing legal education or attendance at seminars; conference rooms or facilities; software and equipment
rental; refreshments or meals during meetings; any alcoholic beverages; gratuities in excess of 15%; local travel (less than 50
miles and 100 miles including the return); travel agent or booking service fees; temporary employee agency fees; incoming
faxes; markups of costs; computerized legal research such as Westlaw or LexisNexis; internet connections; case management
or litigation software systems; or, cell phone charges.
13.
No Billing for Local Travel. Costs for travel of less than 50 miles (100 miles including the return) shall not be
billed.
14.
Invoice Submission, Review and Payment Procedure. Invoices shall be submitted to the Prosecuting Attorney for
review with standards of reasonableness, necessity and efficiency. After this review for consistency, the Prosecuting Attorney
shall submit all approved amounts for processing by the Jefferson County Auditor. Payment of any invoice by Client does not
constitute a waiver of Client’s right to subsequently review, dispute, seek reimbursement of, compromise or request future
credits of legal fees from Attorneys. Payment of hourly rates that have not been approved does not constitute acceptance of
those hourly rates. Any adjustments to invoices shall be detailed in an invoice report that shall be sent to Attorneys by email.
Attorneys may request reconsideration of any material adjustments to an invoice by making such request to the Prosecuting
Attorney within 60-days of receipt of an invoice report.
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