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?