Trust without verification? Exchanging Clancy's Certainty for the Illusion of Control

President Reagan's approach to diplomacy was "trust, but verify" based on an old Russian proverb. The wisdom of this aphorism is not limited to arms control negotiations. It holds equally true when public authorities employ contingent fee counsel to pursue public nuisance litigation.

On May 5, 2010, the California Supreme Court will hear arguments on a major issue - whether public authorities can hire private contingent fee counsel to litigate massive public nuisance cases.

For decades, the California Supreme Court has barred such arrangements because they compromise the duty of absolute neutrality owed by lawyers who represent the public interest. The court absolutely disqualified lawyers with financial interests in the outcome because the public might perceive counsel would make decisions based on personal gain, rather than public interest.

In the case now set for argument, however, the lower court skirted disqualification by adopting a "control" corollary. So long as a supervising public lawyer -who has no contingency interest - controls the case, contingent fee lawyers can represent the public. The presence of the "apex" public lawyer supposedly guarantees neutrality by everyone involved.

Apparently, according to the lower court, this arrangement is entirely trustworthy - even though, in practice, actual neutrality can't be verified because of the attorney-client privilege.

Given that absolute privilege, how can the court, the litigants, and the public know whether the case is truly "controlled" by the public lawyer - or whether the salaried public lawyer is compromised or manipulated by private lawyers with huge financial incentives? When the entire arrangement and daily acts and decisions are shielded by privilege, will misconduct ever be detected?
And even if it is detected "after the fact", what is the remedy for the injustice - not just for the parties, but for citizens whose trust in the justice system is compromised?

The unvarnished truth is painfully simple. The privilege precludes verification. As a result, we are reduced to blind trust - and as the Old Russian wisely teaches, blind trust without the means to verify compliance is inherently untrustworthy. In a perfect world - perhaps in Walt Disney's Fantasyland - humans always do the right thing when the lure of massive recoveries prompts them to do otherwise. In the real world, however, prudent persons guarantee integrity by ensuring that opportunities for abuses never arise.

The California Supreme Court has the opportunity to continue its absolute protection of public confidence by rejecting the lower court's illusory "control" corollary. Alternatively, it could begin a slide down the slippery slope of unverifiable trust. The contrast between the choices is stark. If the wrong decision is made, the question is not whether abuses will occur - but when.