California District Attorneys Come Out Against Contingent Fee Agreements

This website has already taken a look at the California District Attorneys Association amicus curiae brief filed in the public nuisance contingent fee case (Santa Clara v. Superior Court [ARCO et al]) now pending in the California Supreme Court.   Another interesting amicus brief was recently filed by a group of legal ethics professors, headed by the dean of the new U.C. Irvine Law School, Erwin Chemerinsky.

Oddly enough, the legal ethics professors don’t see the need for a bright-line rule against the government hiring contingent fee lawyers to prosecute public nuisance claims like the claims of the government entities in the Santa Clara Lead Paint Litigation.  Instead, the legal ethics professors contend that “the proper standard of neutrality can be maintained in light of the contingency fee agreement  . . . on a case-by-case basis, taking into account the actual relationship between the public entity and its contingent-fee counsel and the type and status of the case at hand. . . .” The brief argues that a categorical ban on using contingent fee lawyers to prosecute public nuisance actions is not required by legal ethics, that such a ban would hobble government efforts to pursue public claims, and that a case-by-case analysis of the relationship between the government and its contingent fee lawyers is all that is needed to safeguard the integrity of public law enforcement actions. The prosecuting attorneys in California, however, disagree.

TheCalifornia District Attorneys Association, representing the State’s elected district attorneys and prosecutors, argue in their own amicus brief that “[p]ermitting contingent fee attorneys to represent public law enforcement interests will necessarily and inevitably inject improper personal financial interests into the balancing process required in civil law enforcement cases.”  Emphasizing that contingent fee lawyers litigating a public nuisance claim are “most definitely acting in the name of the People,” the California prosecutors emphasize not only the improper influence that contingent fee counsel have “as investors in a for-profit venture,” but also the damage that contingent fee attorneys do to public confidence in the impartiality of civil law enforcement actions.  The prosecutors insist on adherence to a strict ethical standard, regardless of economic pressures on the government.  “Fundamental prosecutorial ethical rules cannot be subordinated to mere fiscal considerations.” 

The CDAA brief, written from the perspective of those whose business is, by definition, the prosecution of claims in the public interest, confirms that no amount of supervision or “control” can dispel the appearance of impropriety created when the government allows civil law enforcement actions to be pursued as for-profit ventures by contingent fee attorneys.  The California prosecutors’ emphasis on this appearance of impropriety sounds an appropriate warning.  It is ironic that the government prosecutors are insisting upon imposing a higher ethical standard on government litigants than the academic legal ethics professors, who seem content to allow the courts to supervise contingent fee attorneys’ conduct case-by-case, without regard to the corrosion of public confidence that will follow no matter how well the venture capitalist contingent fee lawyers are “controlled.”