| Advisory Opinion request from Michael Reese Davis on behalf of his clients United Healthcare Community Plan and Optum Rx, Inc. in connection to the payment of legal fees to the State's outside counsel contracted with the Office of the Attorney General through a proposed fee award/settlement arrangement. |
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On April 13, 2022, the State of Louisiana, through the Office of the Attorney General, Medicaid Fraud Control Unit, filed a Petition for Injunctive Relief and Restitution in the 19th Judicial District Court bearing Docket No. C-717848. The suit lists as defendants OptumRx, Inc. and United Healthcare of Louisiana d/b/a United Healthcare Community Plan (collectively referred to herein as the "Defendants"). The suit seeks an Order requiring the Defendants to reimburse the Office of the Attorney General for all costs and expenses incurred in the investigation and prosecution of the suit, including the payment of attorney fees pursuant to the provisions of the Louisiana Unfair Trade Practices Act (La. R.S. 51:1401, et seq.) and the Medical Assistance Programs Integrity Law (La. R.S. 46:437.1, et seq.).
On May 13, 2022, Assistant Attorney General Nicholas Diez, on behalf of the State of Louisiana, filed a Motion to Enroll seeking to enroll the following attorneys on behalf of the State of Louisiana: Robert L. Salim and Lisa Causey-Streete of Salim Beasley, LLC, John Alden Meade of Meade Young LLC, and John Randall Whaley of Whaley Law Firm. On June 14, 2022, Eulis Simien Jr. filed a Motion to Enroll seeking to enroll the law firm of Simien & Simien LLC on behalf of the State of Louisiana.
Prior to enrolling in the suit, the Attorney General's office signed an Agreement Professional Legal Services with the Law Firm of Salim-Beasley LLC, effective February 14, 2014 for a three-year term, for the purpose of representing the State of Louisiana in claims against manufacturers of pharmaceutical products engaging in any conduct to delay or hinder the entrance of generic pharmaceutical products into the market, thereby causing the State to pay more through its healthcare programs. The parties signed a renewal of that contract every three years.
On February 13, 2023, the Attorney General's office signed a Renewal Agreement of the Contract for Professional Legal Services ("Legal Services Agreement") with the Law Firm of Salim-Beasley LLC for the purpose of representing the State of Louisiana in the above suit. The Legal Services Agreement is effective until February 12, 2026. Specifically, Section 1.2 provides:
"Counsel shall investigate and pursue, with the advice, consent, direction, and authorization of the Attorney General (as defined in Appendix A), the claims on behalf of the State and shall provide Professional Legal Services (as defined in Appendix A) pursuant to the terms and conditions of this Agreement. The Attorney General, on behalf of the State, hereby authorizes and appoints Counsel to investigate, pursue, and if possible, recover, on the Claims through such means, including lawsuits, negotiations, arbitrations, mediations, compromises, settlements, or other proceedings or methods, and in such state, federal, private or other courts or forums as the Attorney General or his designee shall elect in his sole discretion. The Attorney General reserves the right to appoint additional counsel for such purposes and to direct the division of responsibility among the Counsel."
Section 1.5 of the Legal Services Agreement provides that "This Agreement will be administered by and under the immediate supervision of the Attorney General or his designee." Section 2.3 allows the Attorney General to terminate the Legal Services Agreement with or without cause upon notice to Counsel.
With regard to the payment of fees, Section 3.1 provides that the Louisiana Legislature has appropriated no funds for the payment of fees to the attorneys for costs and expenses that have accrued or may accrue in connection with the legal services. Section 3.3, regarding fees and expenses, expressly provides:
"The only fees, costs, or expenses that shall be recovered by Counsel shall be those authorized by Louisiana or Federal law (including by not limited to, La. Rev. State. 46:438.1 et seq.) and: (a) awarded by the appropriate Court as wholly separate awards from any recovery by the State, or (b) paid in settlement by a defendant separately from a settlement of the Claims."
Section 4 provides that "no settlement, compromise, or any other disposition of any Claim made by the State (either in its own right or on behalf of its citizens or its political subdivisions) is authorized unless approved by the Attorney General in writing." Section 7 further requires prior written consent of the Attorney General prior to Counsel filing any pleadings, associating any other attorneys, or making a demand with respect to settlement or offers to settle any claims for fees, expenses, costs, or other sums asserted on behalf of Counsel.
Finally, Section 19 of the Legal Services Agreement requires Counsel to certify that no conflicts of interest known to Counsel exist that would preclude Counsel's representation of the State under the rulings of the Louisiana State Ethics Commission, the Louisiana Rules of Professional Conduct, and/or the laws of Louisiana.
The Office of the Attorney General signed similar contracts with the law firms of Meade Young LLC (Attorney John Alden Meade), Simien & Simien (Attorney Eulis Simien, Jr.), and The Lanier Law Firm, P.C. (Attorneys Mark Lanier and Alex Brown) to provide legal services in connection with the above-referenced suit (collectively referred to herein as the "Contracted Attorneys"). These agreements contain the same attorney fee provisions as the Legal Services Agreement, requiring the defendants to pay any awarded attorney fees directly to the Contracted Attorneys' law firms.
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Robert Salim has submitted a letter opposing the issuance of the advisory opinion on the basis that it will interfere with issues currently pending before the District Court. See Attached.
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La. R.S. 42:1111A prohibits a public employee from receiving anything of economic value, other than compensation and benefits from the governmental entity to which he is duly entitled, for the performance of the duties and responsibilities of his office or position.
La. R.S. 42:1117 provides that no public servant or other person shall give, pay, loan, transfer, or deliver or offer to give, pay, loan, transfer, or deliver, directly or indirectly, to any public servant or other person any thing of economic value which such public servant or other person would be prohibited from receiving by any provision of this Part.
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| Assigned Attorney: |
David Bordelon |
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