Results matching “lead paint”

Around the web, September 18 - PointOfLaw Forum

  • Some NYC plaintiffs' lawyers aghast after Judge Jack Weinstein slashes ferry-crash contingency fee from $6 million to $3.6 million, noting undoubted liability in case and client's inability to dicker [NYLJ] For a sampling of Lester Brickman's work urging judges to review reasonableness of contingency fees charged to unsophisticated clients, start here, here, here, and, for some empirical background, here and here;
  • Tulane Law School dean apologizes over law review article correlating Louisiana Supreme Court decisions to campaign donations (but was it wrong?) [Times-Picayune]
  • Latest in Adam Liptak's "American Exceptionalism" series looks at increasing disinclination of foreign courts to cite/follow our Supreme Court, and debate over citation of foreign law in ours [NYTimes, Paulsen @ Balkinization] A different view: Joshua Friedman, CJR.
  • Strange bedfellows? Class-action lawyers suing AIG, Lehman were pulling for the firms' survival so the money would be there [AmLaw Daily]
  • As Rhode Islanders wave goodbye, Motley Rice lead-paint caravan packs up and moves on to other localities [Lisa Rickard, Chamber/Providence Business Journal]
  • More offshore drilling? Well, first you'll have to get past the minefield of lawsuits [WSJ editorial]
  • Questions for U.S. lawyers making Capitol Hill rounds with Ecuadorian "indigenous peoples" clients suing Chevron Texaco [Quin Hillyer, Examiner]

Corporate monitors and double standards - PointOfLaw Columns

By Walter Olson

Last November the Newark Star-Ledger reported on an eyebrow-raising instance of the Justice Department practice of leaning on companies under investigation to appoint "corporate monitors". In particular, New Jersey U.S. Attorney Christopher Christie had "helped the Ashcroft Group—the consulting firm of ex-Attorney General John Ashcroft—obtain a contract worth between $28 million and $52 million to monitor Zimmer Holdings, a medical supply company accused of Medicare fraud." That story quite rightly set off a round of discussion and concern, both because of the dangers of political coziness in the choice of monitor and because the fee numbers seemed high. In July, Democrats on the Hill introduced legislation to impose what it is hoped will amount to an "open, competitive process"—going beyond the Justice Department, which had already adopted its own tightened guidelines for the picking of monitors in implicit acknowledgment that the concerns were genuine.

It's funny how these things work, though. For a full decade now—starting with the great state tobacco-Medicaid litigation, and never really abating since then—debate has raged at the state and local level about the often cozy and uncompetitive process by which governments select outside counsel for the correction of business defendants. In this latter case—exemplified by the gun, lead paint, drug-reimbursement, and many other public-nuisance and mass-tort actions, as well as a wide range of securities class action matters—the lawyers are hired to sue the businesses, as distinct from monitoring them afterward, and they are compensated through contingency fees, which sometimes sets them up for lower fees than Ashcroft & Co., but often for fees that are very much higher.

You may have noticed that many of the folks who have led the charge on the Christie-Zimmer matter display virtually no interest in this longstanding debate about state and local retention of outside counsel. The Times, for example, has gleefully seized on the Christie/Zimmer affair as a stick to beat the Bush Justice Department, invoking "the kindness of cronies", the use of monitoring positions "to throw patronage to friends and political allies", the danger that prosecutorial judgment will be colored by the chance to generate "a rich payday for a friend", and so forth. Yet the Times never shows the slightest editorial interest in the contingency-fee contracts that governors, mayors, treasurers, comptrollers, and attorneys general keep arranging for close chums and leading campaign contributors, whether it be lead-paint contracts in Rhode Island, Oxycontin contracts in West Virginia, securities and drug-reimbursement suits in many states, insurance cases on the Gulf Coast, or tobacco and gun litigation contracts nationwide including its own back yard of New York, Connecticut and New Jersey. Congress never did show much interest in investigating those contracting abuses either, and it shows essentially none now. So although groups like the U.S. Chamber of Commerce have pressed for transparency in the awarding of such contracts, they face a mostly uphill and unpublicized fight.

Of course, one obvious difference between the two types of potential corruption is that there is not much partisan mileage to be had by going after the contingency-fee kind, because although plenty of Republican officials around the country are in on the game, even more Democrats are. But that can't be relevant. Can it?

PBDE Liability: Get ready - PointOfLaw Forum

This concise Law 360 report has likely already pushed all the right buttons at various class action firms. The culprit: a chemical with known benefits that is no longer produced in its riskiest formulations, and whose real risk is in fact currently unknown.

A study released by the Environmental Working Group found that polybrominated diphenyl ethers, or PBDEs, a class of chemicals used in fire retardants, is appearing in toddlers' blood at levels three times higher than in their mothers'.

Historically, three types of PBDE were used in consumer products: Penta-BDE, Octa-BDE, and Deca-BDE. Each type of PBDE has different properties and uses. The manufacturers of Penta-BDE and Octa-BDE voluntarily stopped production at the end of 2004. when risk of those much more potent formulations started to be known. Consequently, Deca-BDE is the only PBDE flame retardant currently used in manufacturing. Deca, much less potent than the other two formats, was found in relatively low levels in children in the EWG study. The study found a low average concentration of Deca PBDE's (the only brand currently produced) of 4.7 parts per billion in children, whereas it found more than 5 times that concentration of total PBDEs -- including those no longer being manufactured -- in children.

Children ingest more PBDEs than adults because the chemicals stick to hands or toys, which toddlers tend to put in their mouths. Children similarly ingest lead-based paint, when their parents fail to maintain their premises or to clean up regularly.

"Flame retardants save actual human lives, and no illness, ailment, or harm to any human anywhere has ever been reported as a result of exposure to Deca, even among those who work producing the material," said a spokesman for The Bromine Science and Environmental Forum. Wanna bet this will not stop suits against makers of Deca PBDE's? We have learned from the asbestos debacle that the "state of the art defense" was no barrier to Bleak House style litigation.

Buckle up, here we go! Thinking of using a new and potentially beneficial chemical compound? Get that crystal ball out first!

From Washington Legal Foundation by defense-side lawyers Thomas R. Bender, Richard O. Faulk, John S. Gray:

On July 1, 2008, the Supreme Court of the nation's smallest state, Rhode Island, gave a loud and mighty roar as it rejected the use of public nuisance law as a means to sue manufacturers of lawful products. In so ruling, the Court conforms to the traditional role of judges presiding over common law controversies, and joined a growing list of other state supreme courts that have refused to enlarge the boundaries of this ancient tort.

Among fatal objections to the plaintiffs' theory: "Defendants Must Control the Public Nuisance at the Time of the Injury" and "Harm Occurring in a Private Homes is not a 'Public Right' that Triggers Public Nuisance Liability". Full 18-page paper here (PDF).

That "Right Thing to Do" - Natural Law in Scary Times - PointOfLaw Forum

The plaintiff bar has made a good read on the confusion and fear - ethical, emotional and legal - of these volatile times.

In the court of law and of public opinion, it is arguing increasingly about the "right thing to do." That, of course, relies on natural-law theory [lex naturalis] or the fundamentalist belief that holds that there exists a law whose content and authority are established by nature, therefore valid everywhere. Throughout Rhode Island's lead paint public nuisance litigation and afterwards in taking on the state's Supreme Court decision in the media, Motley Rice spoke in terms of some universal legal and ethical code.

Natural law's power, points out Australian law professor David B. Goldman in "Globalisation and the Western Legal Tradition," comes from its deep roots in legal thought, dating back to ancient times. That has been reinforced both pragmatically and in the history of ideas by religious, literary, and political movements. Think the American Revolution which embodies belief in natural law in the "Declaration of Independence."

What the defense bar seems to be doing to neutralize this power includes arguments based on points of law, changing times, community mores, CSI-type evidence, mitigating circumstances, and cause/effect vs. mere correlation. The success of tort reform efforts has also tilted the legal system towards relativism instead of absolutist dictates.

Beyond Contingency - Litigation as investment asset - PointOfLaw Forum

Suppose Americans could fund litigation without contingency? That's already possible in England.

As Kevin LaCroix reports in THE D & O Diary, thanks to recent English case law, litigation can be treated as an investment asset. A third-party such as hedge or private equity funds can purchase the claim, sell securities in it, and then operate the case for a profit.

In the U.S., explains Sandeep Salva, that's not possible. In his April 25, 2008 article "Securities Class Actions in London," in CLASS ACTION LITIGATION, he notes in America, "claim assignment is prohibited to a purchaser who has not actually suffered an injury" - see "Independent Investor Protective League v. Saunders," (E.D. Pa. 1974).

The advantage is that this lessens the individual risk in England's "Loser Pays" system. Since barristers's fees tend to be higher than U.S. attorneys's, says Joseph Hetrick of Dechert Law Firm, Loser Pays can limit access to the court. The disadvantage, as Salva notes, is that industries, such as the securities market, might perceive this greater access as a severe threat and not do business in England.

In the U.S., given the controversy surrounding contingency in lawsuits filed by government entities using private law firms and by so-called "ambulance chasers," it might be useful to at least explore this approach now legal in England. Pending in the California Supreme Court is contingency in the Santa Clara lead paint public nuisance case. The trial court nixed contingency, the appeals court okayed it. The arguments against range from alleged violations of due process and separation of powers to the difficulty of government's control over the litigation. The arguments for, as in England, focus on access to the court.

Of course, Americans might not welcome the profit incentive incorporated so directly into the legal system.

Odd but Perfect Fit: Working-class values/CSI Effect - PointOfLaw Forum

Working-class values and the CSI Effect should be mutually exclusive in legal persuasion, right? Wrong, I found out in interviewing the Rhode Island lead paint public nuisance jurors. They straddled both spheres just fine.

Those working-class values, which have become chic as we endure two recessions in less than a decade, celebrate compassion, community, resilience, and the work ethic. In "Limbo: Blue-Collar Roots, White-Collar Dreams," journalist Alfred Lubrano presents fresh prespectives on the world most of us baby boomers ran from.

The so-called CSI Effect, derived from popular crime TV shows, creates the expectation for and trust of scientific evidence. The RI lead jurors, primarily blue-collar, used both mindsets to come to a verdict. The hazards the children faced from lead paint were uppermost in their motivation to make the right decision. And they persisted through four months of a trial and eight days of deliberation to do just that, despite sickness and an abnormal lifestyle.

Simultaneously, they took copious notes - the court was one of the few which allowed that - to keep the so-called facts straight. They became deadlocked twice because of the lack of evidence. They got to a verdict only by pasting the judge's instructructions, which didn't require evidence, to the wall and going through them line-by-line. Subsequently the RI Supreme Court overturned the jury's verdict because of this lack of evidence.

My hunch is that these two very different modes of persuasion mesh in court because law is a unique institution. It's both rule-bound and subject to the community mores. Regarding the latter, the blue-collar ethos, just like in the counterculture 1970s, has become fashionable. That could change with an economic boom, which could revamp current legal rhetoric, especially for the plaintiff bar.

New guestblogger: Jane Genova of Law and More - PointOfLaw Forum

We're happy to announce that Jane Genova, whose blog Law and More we've linked innumerable times at Point of Law, will be guestblogging with us this week. Genova began blogging as an extension of her work in corporate speechwriting, ghostwriting and marketing, but the work soon took on a life of its own, especially after she began to concentrate on the high-stakes but under-reported field of lead paint litigation, which she's covered with extraordinary energy and detail at Law and More. She pioneered the in-person liveblogging of trials before that idea caught on elsewhere, notably in the landmark Rhode Island lead paint case, and has branched out into other law and business topics with a lively mix of content that includes insider interviews, tips on management and branding strategy, speculation on the stories behind the news, and personal asides.

Around the web, August 19 - PointOfLaw Forum

  • Judge Ward has attracted so many patent plaintiffs to his E.D. Tex. courtroom that its "rocket docket" is slowing down [Texas Lawyer]
  • Pennsylvania Gov. Ed Rendell picks Houston chum Kenneth Bailey of Bailey Perrin Bailey to go after Johnson & Johnson in high stakes Risperdal marketing suit [Legal NewsLine, more]
  • Ted Frank on Mirapex compulsive-gambling suit [Examiner, Overlawyered]
  • Motley Rice is griping (and griping and griping) about being done out of its big lead paint payday by the Rhode Island Supreme Court [Genova]
  • Humane Society lacks standing to challenge New York economic development grant to foie gras maker [NYLJ]
  • Unwise judicial selection methods do not equal unconstitutional: a look back at NY's Lopez-Torres case [Haden/Anderson, Fed. Soc.'s Engage; related, Boog/Judicial Reports]

New EPA lead-abatement regulations will complicate the lives of many brownstone and co-op owners, as well as building managers and landlords in rental housing. Harold Shultz of the Citizens Housing and Planning Council explains at Law and More, with link to report (PDF).

Around the web, July 25 - PointOfLaw Forum

  • California Supreme Court agrees to hear appeal of the very important dispute on public contingency fees between Santa Clara County and lead paint defendants [Legal NewsLine; more]
  • More sighs of relief in employee benefits community as Second Circuit joins trend to uphold cash balance retirement plans [NYLJ; background here, here, here, and here]
  • On Scruggs and his "mistakes": "Leaving an 's' out of 'Mississippi' is a mistake; bribing a judge is a crime." [John Agnew, Fort Myers News-Press]
  • Chevron has a website explaining its side in the litigation over Ecuador environmental damage ["Texaco in Ecuador"; earlier here, here, and here]
  • Provoking outrage among plaintiff's bar, employers have found another way to contract around the litigation system, this time via employee agreements to shorten statute of limitations [NLJ]
  • San Diego's city attorney is suing mortgage lenders and says he aims to make his city a "foreclosure sanctuary" [Sorkin, NYT "Dealbook", press release; earlier here, here, etc.]

Transparency in selecting outside counsel? Great idea! - PointOfLaw Forum

Last November the Newark Star-Ledger reported on an eyebrow-raising instance of the Justice Department practice of leaning on companies under investigation to appoint "corporate monitors". In particular, New Jersey U.S. Attorney Christopher Christie had "helped the Ashcroft Group -- the consulting firm of ex-Attorney General John Ashcroft -- obtain a contract worth between $28 million and $52 million to monitor Zimmer Holdings, a medical supply company accused of Medicare fraud." That story quite rightly set off a round of discussion and concern, both because of the dangers of political coziness in the choice of monitor and because the fee numbers seemed high. Last week, Democrats on the Hill introduced legislation to impose what it is hoped will amount to an "open, competitive process" -- going beyond the Justice Department, which had already adopted its own tightened guidelines for the picking of monitors in implicit acknowledgment that the concerns were genuine.

It's funny how these things work, though. For a full decade now -- starting with the great state tobacco-Medicaid litigation, and never really abating since then -- debate has raged at the state and local level about the often cozy and uncompetitive process by which governments select outside counsel for the correction of business defendants. In this latter case -- exemplified by the gun, lead paint, drug-reimbursement, and many other public-nuisance and mass-tort actions, as well as a wide range of securities class action matters -- the lawyers are hired to sue the businesses, as distinct from monitoring them afterward, and they are compensated through contingency fees, which sometimes sets them up for lower fees than Ashcroft & Co., but often for fees that are very much higher.

You may have noticed that many of the folks who have led the charge on the Christie-Zimmer matter display virtually no interest in this longstanding debate about state and local retention of outside counsel. The Times, for example, has gleefully seized on the Christie/Zimmer affair as a stick to beat the Bush Justice Department, invoking "the kindness of cronies", the use of monitoring positions "to throw patronage to friends and political allies", the danger that prosecutorial judgment will be colored by the chance to generate "a rich payday for a friend", and so forth. Yet the Times never shows the slightest editorial interest in the contingency-fee contracts that governors, mayors, treasurers, comptrollers, and attorneys general keep arranging for close chums and leading campaign contributors, whether it be lead-paint contracts in Rhode Island, Oxycontin contracts in West Virginia, securities and drug-reimbursement suits in many states, insurance cases on the Gulf Coast, or tobacco and gun litigation contracts nationwide including its own back yard of New York, Connecticut and New Jersey. Congress never did show much interest in investigating those contracting abuses either, and it shows essentially none now. So although groups like the U.S. Chamber of Commerce have pressed for transparency in the awarding of such contracts, they face a mostly uphill and unpublicized fight.

Of course, one obvious difference between the two types of potential corruption is that there is not much partisan mileage to be had by going after the contingency-fee kind, because although plenty of Republican officials around the country are in on the game, even more Democrats are. But that can't be relevant. Can it?

Sebok on Rhode Island lead paint decision - PointOfLaw Forum

Finishing up his three-part series for FindLaw, in which he calls the Rhode Island court's dismissal of the lead paint case "the right answer for the right reasons", the Cardozo lawprof singles out perhaps the most important point that distinguishes legitimate old from spurious new applications of public nuisance law: "the Court held that the law of public nuisance requires not only that the defendant be a substantial cause of the interference, but that the defendant still be in control of the instrumentality that caused the interference at the time when the suit is brought." (via Scheuerman, TortsProf).

New areas for litigation - PointOfLaw Forum

As the American Association for Justice concludes its annual convention in Philadelphia, we bid farewell by taking a look at the list of the 66 litigation groups , highlighting the proposed groups that met.

  • Bisphenol - A/Phthalates Proposed Litigation Group
  • Motorcycles Proposed Litigation Group
  • Digitek Proposed Litigation Group Meeting
  • Chiropractic Malpractice Proposed Litigation Group
  • Walmart-Proposed Litigation Group
  • Nuva Ring Proposed Litigation Group
  • Chantix Proposed Litigation Group

So I rode my motorcycle over to Walmart to buy some nice, soft plastic toys and refill my stop-smoking prescription. Man, threw out my back....Is there a lawyer for me?

LeadPaintLawFirm.com - PointOfLaw Forum

No one bid on that domain name at its eBay auction (minimum bid, $999; ending date July 7), despite the seller's description of it as "great, keyword heavy for a law firm dealing in lead paint poisoning law suits" and the added attraction of free shipping (in case you were wondering how much it cost to ship a domain name). A reflection of a post-Rhode Island lull in the business, perhaps?

The paint manufacturers hit by the lead-paint lawsuits have just issued a news release about the city of Columbus dropping its suit. Excerpt:

COLUMBUS, OHIO - The City of Columbus has voluntarily dismissed with prejudice its public nuisance lawsuit filed in December 2006 against former manufacturers of lead pigment. With Tuesday's filing in Franklin County Court of Common Pleas, all ten public nuisances suits filed by Ohio cities since 2006 have been either voluntarily dismissed or rejected by courts.

"The City of Columbus followed settled law by asking the court to dismiss its lawsuit," said Charles H. Moellenberg, Jr., an attorney for The Sherwin-Williams Company, speaking on behalf of defendants Sherwin-Williams and Millennium Holdings, LLC. "The lawsuit was legally and factually wrong in suing companies that lawfully made products that the city, painters and consumers demanded historically as the best on the market."

The City's action follows a series of significant decisions over the last two years, all of which have rejected public nuisance lawsuits against former manufacturers. On July 1, the Rhode Island Supreme Court unanimously rejected a public nuisance lawsuit filed nine years earlier, saying that the claim "should have been dismissed at the outset." Earlier, state Supreme Courts in Missouri and New Jersey, along with a jury in Wisconsin, also rejected plaintiffs' claims in public nuisance cases. As a result, public nuisance lawsuits against former manufacturers have been rejected by all courts in which the cases are resolved.

We'll be watching for news from the Ohio Attorney General's office, which last week expressed its intention to continue the state's lawsuit. Seems an untenable position.

Earlier post on Columbus' litigation here.

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.

As for Mr. Motley's yacht, the Themis was still on Power & Motoryacht's list of America's 100 Largest Yachts in 2007. But only #99. He's not keeping up.

Rhode Island's dominant paper, the Providence Journal, summarizes the lead-paint litigation with a Sunday feature on the Liz Colon, the mother of a child who suffered from lead poisoning. Colon became the face of the litigation against the paint manufacturers, joining the activist group, The Childhood Lead Action Project, for which she now works.

From "Court reversal on lead poisoning stuns a longtime advocate for lead poisoning victims":

Colon says she can understand the Supreme Court's rationale for reversing the state's case.

She still has trouble accepting why she had to pay so much financially and emotionally after her son got lead poisoning. Governments at every level are paying. Taxpayers are paying.

And the companies walk away "scot free."

The newspaper invested great time and effort in coverage of the lead paint issue as a public health crisis, in 2001 publishing a special, multipart report, "Poisoned." Among the installments: "Babies as lead detectors," and "Unsafe at home." And the wrap-up, "Enact new laws, enforce the old," with the teaser, "To shake Rhode Island out of its complacency and to stop the lead poisoning of our children, Atty. Gen. Sheldon Whitehouse is going after unresponsive landlords. He has also filed a precedent-setting lawsuit against the companies that manufactured paint containing lead. Some advocates are pushing for additional measures to curb lead poisoning."

That's the kind of coverage that helps activist attorneys general get up in the morning.

Speaking of AAGs, we missed the fact that Rhode Island Attorney General Patrick Lynch was elected last month to be president of the National Association of Attorneys General. Why? For the children:

"I am enlisting the assistance of my colleagues and good corporate citizens, and marshalling the resources of NAAG and other organizations, to increase protections, decrease risks, and encourage a more just and secure world for our children," Attorney General Lynch said.

A Sensible Reaction from Columbus, Ohio - PointOfLaw Forum

From the Columbus Dispatch:

"Most everybody pinned their hopes on how Rhode Island moved," said Columbus City Attorney Richard C. Pfeiffer Jr. "I think it's fair to say, with Rhode Island's decision, we'll have to seriously re-evaluate this case and see if it should continue."

The city estimates that cleaning up 150,000 lead- contaminated homes could cost $1.7 billion.

"Obviously, this ruling in Rhode Island does not bode well for our legal strategy," said Dan Williamson, spokesman for Mayor Michael B. Coleman.

Columbus sued paint manufacturers in December 2006, (mis)using public nuisance law in the process. (Search for the docket for case 06 CV 016480 here.) In March, 2008, U.S. District Judge Edmund A. Sargus Jr. dismissed a suit filed by Sherwin-Williams that sought to block the city's litigation. (Columbus Dispatch story), so the city's suit is still alive. But in any case, the water-based writing is on the wall.

The Attorney General's office is not reacting as post-factually as the city attorney's office. The Dispatch quotes Jim Gravelle, an AG spokesman, saying, "This in no way restricts Ohio's right to hold lead paint companies liable for the extreme harm they have caused Ohio citizens under public nuisance or other causes of action."

We note the state's lawsuit was filed in 2007 by the disgraced, since-resigned AG, Marc Dann. His judgment obviously proved lacking in many things; the current, appointive AG could certainly renounce the lawsuit with no political harm, especially since she's not seeking the office in the fall election. And ultimately, it was politics that drove the suit.

P.S. The Cleveland Plain-Dealer editorially called on the state and cities to face reality and give up the suits: "Paint companies should continue helping struggling cities abate this expensive problem, but those are deals to be struck at a negotiating table, not in a courtroom."


By John H. Sullivan

"Not only is a government lawyer's neutrality essential to a fair outcome for the litigants in the case in which he is involved, it is essential to the proper function of the judicial process as a whole."

These words by Justice Stanley Mosk in his 1985 People ex rel. Clancy v. Superior Court decision have been a beacon for public attorneys. They know, as he also wrote, that "without a belief by the people that the system is just and impartial, the concept of the rule of law cannot survive."

Last week, the 6th District Court of Appeal, in County of Santa Clara v. Superior Court , dismissed most of his decision as dicta. Mosk's opinion has long protected impartiality by prohibiting public prosecutors from hiring lawyers on a contingency fee basis. It is a powerful unanimous statement, joined by then Chief Justice Rose Bird and future Chief Justice Malcolm Lucas. When Mosk wrote of "the heightened ethical requirements of one who performs governmental functions," it was not as a theoretical observer. He served six years as attorney general before a remarkable 37-year career on the California Supreme Court.

The 6th District, in approving government lawyer contingency fee hiring of private lawyers in lead paint nuisance actions, distinguished Clancy from the Santa Clara case. It saw a lack of control by the city of Corona over private attorney James Clancy in a quaint contingency fee contract ($60 an hour for wins, $30 an hour for losses) to hassle adult bookstores. In Santa Clara, the justices found a different contingency fee situation where private counsel are "merely assisting" government attorneys and "lack any decision-making authority or control."

We don't know much about the Corona's control of Clancy because there's little discussion of that in the Mosk decision. But we don't know much for certain either about the various city attorneys' and county counsels' control over the private attorneys in Santa Clara - even though the Court of Appeal gives the topic lots of attention. The seven contingency fee agreements involving each city or county and its private lawyers evidently were control deficient. Most of the cities, counties and private lawyers submitted post-litigation declarations saying the government lawyers were in charge. The city of San Mateo never produced an agreement but wrote to the court that its in-house lawyers retained "complete control ... final authority," etc.

Oakland, which declared that "notwithstanding any documents suggesting the contrary," its city attorney retained complete control and is in the process of revising the contingency fee agreement "so that it reflects the reality of the relationship."

Pity a judge having to determine what's really going on, as Justice Patricia Bamattre-Manoukian in her concurring opinion proposes be done. She would have the agreements plus "the factual circumstances" and "the conduct of the plaintiff's counsel" be among the "many important factors in each case" that courts should henceforth analyze when approval of contingency fee agreements come before them. And come before them they will - in droves, once the contingency fee bar seizes the financial opportunities that lay in a new block of government clients.

Santa Clara focuses on nuisance actions. These will be a springboard. The lead paint cases originally included causes of action for fraud, strict liability, negligence and unfair business practices. If Santa Clara stands, we will soon hear why there's no reason to distinguish between nuisance actions and the others in contingency fee deals.

How these "public-private" cases are managed matters less than who chooses the case in the first place.

In Santa Clara we are not told how the governments and private firms hooked up. Were bids solicited? Or did the firms solicit the cities and counties?

For a dire example of where the latter can lead, look at Mississippi. There, plaintiff lawyer icon Dickie Scruggs brought his Katrina litigation plan to state Attorney General Jim Hood. Their joint contingency fee effort won $80 million in private lawyer profits from State Farm. Scruggs and his firm contributed more than $50,000 to Hood in the 2007 election cycle, according to Wall Street Journal research. The Journal found that over the past five years, Hood and 27 law firms jointly pursued state lawsuits against companies. Those firms gave Hood $543,000 in campaign contributions. Now Mississippi is looking at requiring competitive bidding for private lawyer hiring and limiting contingency fee deals to $1 million.

What might securities lawyers Bill Lerach, Melvin Weiss, et al., have tried, given their willingness to illegally pay clients, if California had not been protected by the Clancy decision?

South Carolina-based Motley Rice, a private firm in the Santa Clara case, boasts that its attorneys have "gained global recognition for their work on behalf of the State Attorneys General."

Our association's amicus brief in Santa Clara noted, without any inference of wrongdoing, that two other law firms hired by the cities and counties in the lead paint litigation made campaign contributions to San Francisco's city attorney, one of the Santa Clara parties. San Francisco's unique city/county status makes its city attorney an elected official, as are all district attorneys in the state. Everywhere else, city attorneys and county counsels are hired by city councils or boards of supervisors. The Civil Justice Association of California's review of contribution records turned up no Santa Clara case private attorney contributions to local elected officials in the jurisdictions involved.

Some county counsels and city attorneys argue they can't afford expensive litigation, that small counties are especially handicapped. But a major product or financial transgression is not going to occur just in Mariposa County. It will be discovered statewide. City and county counsel can combine and coordinate their efforts across jurisdiction lines - just as district attorneys do. Maybe district attorneys and the attorney general should handle these matters.

Our amicus brief recalls how California's attorney general joined with 49 other states in a tobacco public nuisance lawsuit but rejected offers from outside contingency fee lawyers seeking a piece of the action.

Following the 2004 passage of CJAC-sponsored Proposition 64 barring Unfair Competition Law claims by private lawyers without injured clients, the Daily Journal reported that "the plaintiffs' bar has been looking to team up with public prosecutors since the [initiative] limited private attorney general suits." It didn't happen. A Lockyer spokesman told the paper that "it's not a good idea having private lawyers running around with a badge."

This philosophy, flowing directly from Clancy and Mosk, runs strong in district attorneys' offices around the state. Note that neither the attorney general's office nor a single district attorney filed an appellate court amicus brief in the Santa Clara case.

During the plague of private lawyer shakedown lawsuits leading up to Proposition 64, district attorneys called attention to the important distinction between public and private enforcement of civil laws. This distinction, the Los Angeles district attorney's office pointed out in a brief in one of the auto repair shop B&P Code Section 17200 extortion cases, "is especially important in that the systemic checks and balances - including special ethical norms and the democratic electoral process - applicable to public enforcement officials do not apply to 'private attorneys general' litigating representative causes of action."

Mosk died in 2001 at the age of 88, on the very day he was planning to submit his retirement resignation to the governor. In a tribute to him before Congress, it was observed that "while his life has ended, his legacy shines brightly for all Californians and for our great Nation." The Santa Clara ruling has dimmed his legacy. The Supreme Court should restore it.

John H. Sullivan is president of the Civil Justice Association of California in Sacramento, a nonprofit association representing businesses, professionals, and local governments. Information on the association and civil justice issues is at www.cjac.org.

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