From Stuart Taylor, National Journal, Feb. 19, 2003, "Perverting the Legal System: The Lead-Paint Rip-Off."
[Attorney General Sheldon] Whitehouse signed an unusual "retainer agreement" with Ness Motley and another firm. It not only guaranteed the lawyers a contingent fee of 16.67 percent of any money recovered, plus all litigation expenses; it also gave them considerable control over whom to sue, what to claim, whether to settle, and on what terms. In other words, Whitehouse delegated a share of the state's sovereign power to a law firm whose best-known partner, Ronald L. Motley, had vowed that he would bring the paint industry to its knees within three years or give up his 156-foot yacht. Never mind the conflict between the interests of the lawyers in huge fees and the interests of Rhode Island's people, who might, for example, be misled and alarmed by the lawyers for their state, who claim that old lead paint in school buildings is a big threat to the students.
With all the commentary over the R.I. Supreme Court's rejection of the state's public-nuisance lawsuit against the paint industry, there was comparatively little analysis of the ruling's section on the propriety/legality of contingency fee arrangements. LegalNewsline had a good examination of the issue, following up a story from May about Motley Rice's fee. Otherwise...eh. Probably because the court upheld the contingency fee, albeit with strong words of admonition.
The section of the opinion on the continency fee arrangement, Track V, starts on page 60. The gist is on page 71.
The Propriety of Contingent Fee Arrangements
Although we are keenly aware of the gravity of the issue and of the fact that thoughtful and potent policy-based arguments have been made on both sides of the issue, in the end we have concluded that, in principle, there is nothing unconstitutional or illegal or inappropriate in a contractual relationship whereby the Attorney General hires outside attorneys on a contingent fee basis to assist in the litigation of certain non-criminal matters. Indeed, it is our view that the ability of the Attorney General to enter into such contractual relationships may well, in some circumstances, lead to results that will be beneficial to society--results which otherwise might not have been attainable. However, due to the special duty of attorneys general to "seek justice" and their wide discretion with respect to same, such contractual relationships must be accompanied by exacting limitations. In short, it is our view that the Attorney General is not precluded from engaging private counsel pursuant to a contingent fee agreement in order to assist in certain civil litigation, so long as the Office of Attorney General retains absolute and total control over all critical decision-making in any case in which such agreements have been entered into.
Bolded and underlined! And restated, more or less, several times in the opinon.
A good sentiment, but hard to enforce in the real world, we think.