Santa Clara Oral Argument: It Isn't About Control

The California Supreme Court heard arguments last week in Santa Clara v. Superior Court (Arco et al),which we’ve been following on this blog. Cal Law has an article about it (Public-Private Suits May Get Justices' OK) as does the Daily Journal (Agencies May Get to Hiring Counsel). At issue is whether government entity plaintiffs, when exercising their sovereign authority to bring civil law enforcement actions (such as the public nuisance action in this case brought against lead paint manufacturers), may hire outside contingent fee counsel to prosecute the claims, despite those counsels' personal stake in maximizing any monetary recovery against the defendants.

The articles noted above indicate that some of the justices hearing the case (four sitting Supreme Court justices, two pro tem justices, and one justice who was absent but who will observe a videotape of the proceedings) might be comfortable with a hiring arrangement under which the government entity in-house lawyers would maintain “control” over the litigation, removing any taint from the conflict between the lead attorneys’ private motive in attaining a monetary outcome, and the interest of the general public in arriving at a solution that best balances competing considerations that arise in the complex world of public nuisance litigation and other exercises of sovereign power. Some comments at argument, particularly from Chief Justice Ronald George, indicated an uneasiness with the defendants’ argument that true “control” cannot successfully be achieved, or even monitored. As the Daily Journal article reports, Chief Justice George skeptically asked defense counsel, "Are you indicating that unless you can be a fly on the wall and listen to conversations [between in-house government lawyers and their outside contingent fee counterparts], you won't have the necessary assurances?" Chief Justice George suggested that certain “guidelines” could be crafted to ensure that the public interest would remain paramount during the course of the government prosecution.

Justice Chin, however, did not appear to be so confident that any such guidelines could really be effective. And rightly so. The question is not whether the government’s in-house staff will, in good faith, make every effort to assert control. That is beside the point. Even assuming the highest level of skill and integrity on the part of those in whom control is supposed to reside, there are serious insurmountable problems with delegating to conflicted counsel a substantive role in legal representation. Some of those problems are highlighted in a brief filed by the California District Attorneys Association, discussed previously on this blog. Here’s hoping the justices re-read that brief before coming to a final decision in Santa Clara.