Story here; opinion here in Santa Clara County v. Superior Court (Atlantic Richfield).
The case is a public nuisance action related to lead paint. A group of cities and counties banded together and used their employee-lawyers and contingency fee lawyers from private practice to prosecute the matter. The trial court barred plaintiffs from paying the contingency fees, citing People ex rel. Clancy v. Superior Court, 39, Cal.3d 740 (1985), which held that government lawyers should not have personal financial interests in a litigation matter. The intermediate appellate court reversed, holding that contingency fee private practice lawyers could be used if they work with and under the supervision of the government lawyers. The Supreme Court of California has now held that the use of contingency fee lawyers is not forbidden per se, but cannot be done in a manner that compromises "either the integrity of the prosecution or the public's faith in the judicial process."
Critical decisions about the litigation must be made by "neutral" government attorneys. "Such control of the litigation by neutral attorneys provides a safeguard against the possibility that private attorneys unilaterally will engage in inappropriate prosecutorial strategy and tactics geared to maximize their monetary reward." (27)
Of course, a key practical issue is funding. The counties maintain that they need to use private practice plaintiffs firms to "level the playing field" against big corporations. Huge tort cases can be very expensive and from the point of view of budget-strapped counties, the cheapest funding is to give talented plaintiffs lawyers a piece of the action. From the other point of view, the use of private plaintiff's bar to step into the government's shoes threatens to blur the roles between private mercenary lawyers and public lawyers (who have a higher duty), to make the public wonder if government entities are pursuing revenue enhancement rather than vindicating public rights, to stack the deck against out of state corporations who already were facing county governments in county court houses, and to violate the old principle that no government lawyer should have a personal monetary stake in a litigation matter. What do our readers think?
UPDATE: An earlier article by John Sullivan is here; Point of Law posts today.
I don't see a problem in the context of civil litigation. I realize their is a fear that government has greater power than private citizens, but here, the governments are using the contingency fees exactly because they lack the funding to hire the lawyers on another billing basis.
One concern about government litigation is that governments may pursue litigation partly for political purposes or party out of vendettas. Since it is taxpayer's money, not the money of elected officials, that funds the litigation, a politician may be willing to spend money on bad cases that a private litigant would never waste his/her own money funding. The contingency fee funding helps cure this problem - they give plaintiff's attorneys a disincentive to pursue litigation that is frivolous or has very little hope of succeeding, since it is their own money that funds the litigation expenses, not the taxpayers. Contingency fees have been used in prior litigation on behalf of governments, for example, in some of the tobacco liability trials in the late 1990's.
On the other hand, I would have a different opinion in criminal matters due to the different purpose of the criminal justice system and the stakes involved. Most states generally prohibit contingency fees in criminal cases.
Posted by: Law school grad | July 26, 2010 at 08:58 PM