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Calif. judge: gov't lawyers shouldn't be on contingency

Earlier this month there arrived some of the best legal news of the year so far:

...a Santa Clara County judge has told several cities and counties they can't contract with private lawyers on a contingency basis in their nuisance suit against lead paint manufacturers.

The ruling by Judge Jack Komar says lawyers for the government are supposed to be neutral, a stance that's not possible when a contingency fee is riding on the outcome of their efforts.

In his written order issued Wednesday, Komar rejected an assertion by Santa Clara County Counsel Ann Ravel and other government lawyers that they retain decision-making authority, even though they've brought in Burlingame's Cotchett, Pitre & McCarthy and other firms for assistance since the lead paint litigation was filed some seven years ago.

Ravel said she will probably appeal Komar's decision, partly out of concern that it could derail other public interest litigation.

As I pointed out way back in The Litigation Explosion (1991) precedents in both the federal and California court systems provide compelling support for the idea that lawyers cannot bring the requisite scrupulousness and neutrality to representing the government if they stand to collect a share of the booty -- which is why we would never think of permitting criminal prosecutors to be paid per scalp. Beck and Herrmann have a typically good post in reaction; the ruling if upheld obviously throws into much doubt the legitimacy of the whole "affirmative litigation" sector and the cozy alliances of public and private lawyers it calls forth, as Hans Bader notes. Another example: many Medicaid "cost recovery" suits by states against drugmakers.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.