RBG senior partner Sandy Rosen published the following Letter to the Editor which appeared in the Daily Journal on October 19, 2011.

“Kim Stone and the Civil Justice Association of California abhor the recent decision in County of Santa Clara v. Superior Court, in which the Supreme Court refused to extend the narrow holding of People ex rel.Clancy v. Superior Court to create an unnecessary and impractical universal prohibition of contingent fee arrangements between public entities and private lawyers who assist them with public nuisance cases.See “Just don’t do it:  Prosecutors should avoid partnering with plaintiffs’ lawyers.” Daily Journal, October 12, 2011, page 2.

Ms. Stone acknowledges  the Court’s holding in County of Santa Clara mandates only that public prosecutors may engage contingent-fee counsel, who are under the control and supervision of government lawyers and entities, to prosecute public nuisance cases.  She did not note that the decision was without dissent.  Yet, Ms. Stone and her lobby continue to advocate in the political arena the bright line prohibition rejected by our Supreme Court, by beseeching public prosecutors never to retain private contingent fee attorneys to represent their public entities to  enforce public nuisance laws.

She ignores the considerable evidence that prohibiting public entities from hiring private attorneys on a contingent-fee basis  often would preclude public entities from bringing large-scale public nuisance cases that promote public health and safety. Particularly in these days of economic distress and environmental concern, marked by layoffs of government lawyers and enforcement workers, state and local government entities in general lack the resources to bring and sustain, over years of litigation, abatement actions against large well-funded and lawyered corporate entities.

As identified by the unanimous Court in County of Santa Clara, the only appropriate concern when a public entity hires a private contingent fee lawyer is to ensure that the private lawyers’ profit motive does not trump the public interest and the neutrality required of public prosecutors. The Court identified precautionary measures available to ensure that desirable public entity lawsuits can be managed on a contingent-fee basis without the risk of ethical violations, corruption or harm to the public trust.

As was made clear by the Court, and in many briefs submitted to the Court, including an amici curiae brief my firm submitted on behalf of eight nationally and California recognized legal ethics experts,  ethical behavior and neutrality can and should be assured on a case-by-case basis, taking into account such factors as the actual relationship between the public entity and its contingent-fee counsel, the actual customized terms of the contract, and the type and status of the case at hand. Moreover, courts have ample authority to review and monitor the relationship between attorney and client to ensure that such neutrality is maintained. As the Court held, no more is necessary to enable public prosecutors to hire private attorneys to prosecute cases that are in the public’s interest, and they should do so when the need arises.”