Amicus Curiae Briefs Filed in Santa Clara Case: Most Come out Against Contingency Fee Arrangements for Inherently Public Claims

The pending Santa Clara v. Superior Court litigation has previously been discussed on this site, most recently in a post with an update on the parties’ merits briefing.  As can be seen from the California Supreme Court’s online docket, the amicus briefs are rolling in to address the issue presented before the court, i.e., "May a public entity retain private counsel to prosecute a public nuisance abatement action under a contingent fee agreement?  

Interestingly, the California District Attorneys Association is one of the amicus curiae groups opposing the position of the plaintiff cities and counties, who are seeking the right to allow outside counsel with a pecuniary motive to steer the public litigation toward the maximum possible monetary recovery.  Presenting the “perspective of prosecutors on various matters affecting law enforcement and the administration of justice,” the Association comes out strongly in favor of a “bright line rule prohibiting attorneys representing the government from having a personal pecuniary interest in the outcome of a case requiring absolute prosecutorial neutrality and impartiality.”  The Association concludes that a contrary rule such as that crafted by the California Court of Appeal (excusing a lack of impartiality where in-house government attorneys purport to exercise supervisory control over the litigation) “will undermine the integrity of the judicial system in general and will jeopardize significant consumer and environmental protection statutes.”  (CDAA brief, pp. 2-3.) 

Among the many compelling points made by the Association is the practical one that, when a contingent fee attorney “takes or defends depositions, propounds or responds to interrogatories, prepares briefs, interviews witnesses, reviews evidence, makes court appearances, and performs one of the myriad tasks required in a case of this magnitude, he or she is most definitely acting in the name of the People,” and necessarily is “given latitude and discretion” because the government attorneys are not and could not be present to supervise each move.  “[O]therwise, if there were enough government attorneys to be present at all times, there would be no need for these contingent fee outside attorneys.”  (CDAA brief pp. 14-15.)  The Association concludes that it is not enough for government attorneys to claim they retain “decision-making” power where, as is inevitably the case when outside contingent fee counsel are hired, the government prosecutor’s discretion “has been placed within the influence of an interested party.”  (CDAA brif, p. 17, original emphasis.)  And, as the Association points out, such influence may occur even where no one really intends it:  “it is impossible to disregard human nature.”  (CDAA brief at p. 21.)  In Santa Clara, “[a]cting as investors in a for-profit venture, [the private contingency fee counsel] have invested untold dollars and hours in this commercial enterprise which could all be for naught if this lawsuit fails,” and it would be contrary to human nature to overlook the fact that their “economic interests color everything they do in connection with this litigation,” including efforts in regard to advocating certain monetary remedies consistent with their private interests over other remedies that may better serve the public.    (CDAA brief, pp. 21-24.)

Below is a roster (some hyperlinked to the corresponding briefs) for the convenience of anyone who is counting noses:

Chiming in for defendants:

1. California District Attorneys Association;
2. Heartland Institute;
3. NFIB Small Business Legal Center;
4. National Paint & Coatings Assn., Inc.;
5. Org. of African Americans in Housing;
6. Public Nuisance Fairness Coalition, American Chemistry Council, Assn. of Calif. Ins. Cos., Property Casualty Insurers Assn. of America, and National Assn. of Manufacturers;
7. Product Liability Advisory Council, Inc.
8. Chamber of Commerce of the United States

Submitting a “neutral” brief not in support of either party:

1. CL. Trustees et al

Chiming in for plaintiffs:

1. California State Association of Counties, et al.;
2. Healthy Children Organizing Project, et al.;
3. Professor Erwin Chemerinsky, et al.;
4. Public Justice P.C.;
5. State of Rhode Island

[Full disclosure:  this blog's author represents one of the defendants targeted in the Santa Clara case.]