SACRAMENTO — The Civil Justice Association of California (CJAC) has filed an amicus brief asking the California Supreme Court to preserve a case rule that for more than two decades has prevented the potentially corruptive influence of contingency-fee agreements between public prosecutors and private lawyers.
In the CJAC brief, the association’s general counsel Fred J. Hiestand quotes long-time Justice Stanley Mosk, whose 1985 decision Clancy v. Superior Court spoke strongly of the need to protect the integrity of the judicial process. In it, Mosk proclaimed: “Not only is a government lawyer’s neutrality essential to a fair outcome for the litigants in the case in which he is involved, it is essential to the proper function of the judicial process as a whole.”
The current case, County of Santa Clara v. Superior Court, involves city attorneys and county counsels in a handful of jurisdictions hiring contingency fee lawyers to bring a public nuisance action against lead-based paint manufacturers.
The trial court had ruled against the use of these agreements. However, a Sixth District Court of Appeals panel overturned the Superior Court in a confusing ruling holding fee hiring is acceptable if the government entity maintains control of the case. The cities and counties involved later filed statements saying they had established control or were going to.
“So far, California has escaped the corruptive infection of attorney general-plaintiffs’ lawyer contingency fee contracts,” said CJAC President John H. Sullivan. He noted that in recent weeks the governor of Pennsylvania and the attorney general of New Mexico received national media attention for accepting large campaign contributions from plaintiffs’ law firms and giving the same firms contingency fee contracts to do work for their offices.
In the CJAC brief, Hiestand concludes that, “It is inherently impossible for an outside, private retained counsel, compensated on the basis of a contingency fee contract, to uphold the principles of impartiality and neutrality that represent the office of the public prosecutor.” And he recalls a newspaper editorial that emphasized the point: “When outside lawyers are hired to do the government’s business, and then given a financial stake in the outcome, it creates irreconcilable conflicts of interest.”
Fortunately for California, our attorneys general and district attorneys have headed off plaintiff lawyer solicitations and conflicts of interest by following the guidance of Justice Mosk and a unanimous court. Attorney General Jerry Brown has avoided contingency-fee contracts. Even former state Attorney General Bill Lockyer, a plaintiffs’ lawyer friend on many issues, noted through a spokesman once that “it’s not a good idea having private lawyers running around with a badge.”
Sullivan added: “We hope that California law continues to protect our state’s prosecutors to set their priorities based on the public’s interest and not have to contend with lawyers proposing litigation based on their own pursuit of contingency fees.”
Contact: John H. Sullivan
916-443-4900