Civil Justice Association of California - San Francisco, CA
It Can Happen Here
May 10, 2010
By
John Frith
Categories:
Courts
The California Supreme Court last week heard oral arguments in a case that could lead the state down the wrong path.
The case, County of Santa Clara v. Superior Court, would allow state and county prosecutors to hire private contingency fee lawyers and in all or in part overturn People ex rel. Clancy v. Superior Court, a unanimous ruling from the 1980s that banned such actions due to the unavoidable conflict of interest that arises in such a partnership.
Allowing trial lawyers to prosecute civil cases on the government’s behalf could well open the door to corruption. That’s exactly what occurred in Mississippi in the well-publicized case of trial lawyer Dickie Scruggs.
In today’s Daily Journal, the authors of the authoritative book examining the whole sordid tale, including bribing judges, tell about the rise and fall of Dickie Scruggs. The op-ed by Alan Lange and Tom Dawson - the latter the lead U.S. prosecutor in the Scruggs cases - is available to subscribers only here. In addition, the paper ran a book excerpt that subscribers can find here
For non-subscribers, here’s the opening from the op-ed.
An Unavoidable Conflict of Interest
By Alan Lange and Tom Dawson
“What I call the “magic jurisdiction,” [is] where the judiciary is elected with verdict money. The trial lawyers have established relationships with the judges that are elected; they’re State Court judges; they’re popul[ists]. They’ve got large populations of voters who are in on the deal, they’re getting their [piece] in many cases. And so, it’s a political force in their jurisdiction, and it’s almost impossible to get a fair trial if you’re a defendant in some of these places… These cases are not won in the courtroom. They’re won on the back roads long before the case goes to trial. Any lawyer fresh out of law school can walk in there and win the case, so it doesn’t matter what the evidence or law is.” - Richard F. “Dickie” Scruggs - 2002 Prudential Securities Seminar
What famed plaintiffs’ lawyer Dickie Scruggs didn’t mention at that securities seminar in New York is how he laid the groundwork for these “magic jurisdictions” by getting language slipped into legislation to clear the way for the state of Mississippi to hire him on a contingency fee basis to work on, and profit handsomely from, civil cases filed by the state’s attorney general. This summer, California’s Supreme Court will rule on just such a hiring scheme, presented in County of Santa Clara v. Superior Court, a lawsuit in which the county’s counsel partnered with Bay Area plaintiffs’ lawyers in lead paint litigation.
For more than two decades, California public prosecutors have shunned such private lawyer contracts. Their compass has been the California Supreme Court’s unanimous ruling in People ex rel. Clancy v. Superior Court, a decision based on the unavoidable conflict of interest that arises in such partnering.
Private lawyers exercising the power of the state under contingency fee contracts cannot be expected to act with the same sense of impartiality and always in the public’s interest when their own interests are at stake. This conflict becomes more acute after the initial pursuit decision has been made and issues of settlement versus protracted litigation come into focus. When we allow these inherent self-interest conflicts backed by the power and majesty of the sovereign, we as a society enter very dangerous territory.
These dangers are well-stated in a California District Attorneys Association amicus brief in the Santa Clara case, a brief urging California’s top court to protect the current prohibition despite financing hardships currently facing public prosecutors. Attorneys General around the country are dealing with limited resources, and California’s financial situation poses an obvious temptation to pursue expedient remedies to increase revenues and reduce workload. However, the experience in other states is clear - placing the power of the state in the hands of a few politically-connected lawyers looking for profit is bad policy with potentially disastrous results. Those lawsuits inevitably become political footballs worth tens and sometimes hundreds of millions of dollars in legal fees. That kind of verdict money and the attorney’s fees associated with it invariably become politicized, which in other states has led to corruption.
If California decides to change course and allow these fee agreements, corruption may not immediately ensue. However, it is foreseeable that it could put in motion the law of unintended consequences, which has played out with disastrous results in other states.
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This page contains a single entry by John Frith published on May 10, 2010 12:54 PM.
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