Thoughts on Public Nuisance Actions by Private Contingency Fee Attorneys.

Professor Tony Sebok has been following lead paint litigation and he accurately predicted that the Rhode Island Supreme Court would "do the right thing. It will act like a responsible common law court and interpret the doctrine of public nuisance in a principled way—which in this case means drawing the line between tort and public nuisance, and drawing that line in favor of the defendants."  That's just what happened when the decision in State of Rhode Island v. Lead Industries Association, Inc came down.

Last week Sebok also undertook to predict where the California Supreme Court may need to go in County of Santa Clara v. Superior Court, in which the justices must decide whether government entity plaintiffs can hire private counsel on a contingent fee basis to do the heavy lifting on weighing all the competing public policies inherent in pursuing a public nuisance action for abatement.  (Information on the Santa Clara case can be accessed through this official court link.)  His overall conclusion is that it would be "formalistic" to follow an earlier California Supreme Court decision ( Clancy v. Superior Court, 39 Cal. 3d 740 (1985)) that held public nuisance actions should not be prosecuted on behalf of the public by attorneys with a personal financial stake in the outcome.  Sebok further questions the premise for the Clancy decision, which found public nuisance actions to share attributes with criminal prosecution on behalf of the public, in that both require rigid adherence to principles of ethical neutrality and pursuit of justice rather than a check mark in the "win" column for the prosecutor.  Some of Sebok's points in arriving at his conclusions, however, merit close scrutiny.

For example, he says "Critics of the whole public nuisance campaign against the lead paint industry have been saying for years that the suits are really stealth tort suits. Now, it is very strange to hear the same critics say (when it is convenient for their cause, because it rules out the use of private lawyers) that in fact what is really at stake here is whether a public right has been violated."

But it is not, in fact, "strange" for the defendants to say (as the Rhode Island court basically recognized) that public nuisance actions cannot properly be used as an end run around the requirements of traditional tort suits sounding in product liability or negligence, and at the same time to say that if public nuisance actions are allowed at all (as one California intermediate appellate court said at an earlier stage of the Santa Clara proceedings), then they certainly shouldn't be prosecuted by private counsel with a personal stake in achieving the highest monetary recovery possible, even if that's not what's best for the public as a whole.  The plaintiffs persuaded the California Court of Appeal that their public nuisance action seeking abatement was distinguishable from earlier California cases barring public nuisance actions that should have been brought under ordinary tort theories.  By the plaintiffs' own debatable logic, the public abatement angle makes the case sound a lot like a criminal prosecution, in which private contingency agreements would never be allowed.

Sebok also makes a statement that overlooks the realities of how prosecutorial discretion works, and why neutrality is so important, when he says, "Do we really believe that government lawyers are neutral in the context of prosecutions? Of course, prosecutors do not get paid twice as much for each conviction than acquittal, but careers are based on an accumulated record of success-in other words, prosecutors have every incentive not to be neutral, and to promote their own (and the state’s) interest in convictions."

The thing is, the job of the government lawyer (unlike the private lawyer) isn't to look around for as much work as possible so as to generate increased personal income by expanding the caseload and hiring extra lawyers as needed on the private market to handle the cases.  Instead, the government lawyer's job is to figure out which conduct is worthy of prosecution, and to use the resources of the office to do the most public good.  Sure, prosecutors have every incentive to win the cases that they decide should be brought, but they also have a laudable incentive to forgo or drop the cases that don't, on balance, accomplish the best result for the public whom they represent.

Private attorneys with a contingent fee interest don't have the same neutral interest in serving the public, but will instead be motivated to maximize a monetary recovery (and to sway their in-house government lawyer colleagues to that approach) even if it won't actually help members of the public in any meaningful way, and even if it means many members of the public could be adversely affected (by, for example, involuntary destructive testing, unwanted and potentially hazardous "repairs," higher product costs, higher taxes for government oversight of abatement efforts, and so forth).  In short, whatever may otherwise motivate the givernment attorney, the participation of contingent fee attorneys taint the prosecution with a profit motive that erodes public trust in the neutrality and integrity of the prosecutorial function.

I do agree with this conclusion by Sebok:  "The real question, in my opinion, is whether the presence of these contingency-fee firms will somehow make it more likely that there will be a miscarriage of justice, than if the suits were brought by ambitious government lawyers on a salary, or by hourly-rate private firms hoping for repeat business."  I think the answer is obviously yes!