In January, Blawgletter posed this question: "Can Public Entities Hire Lawyers on a Contingent Fee Basis?" We got our answer today. The California Court of Appeal for the Sixth District said Yes — Yes, they bloody well can. County of Santa Clara v. Superior Court (Atlantic Richfield Co.), ___ Cal.App.4th ___ (Apr. 8, 2008).
The decision turns on the public entities’ retention of "control over all decision-making" in the litigation, which involves local governments’ efforts to abate a public nuisance, lead paint. The control, the court held, satisfies the requirement of "absolute neutrality" in government lawyers. Even though the private contingent fee lawyers of course may not completely share their supervisors’ disinterest.
Blawgletter views the outcome as a sensible recognition of the need, sometimes, to enhance the ability of public entities to combat and remedy public wrongs. But we also get the court’s emphasis on who controls the course of litigation (to the extent any pay may control that rowdy beast). As we said in January, "Blawgletter finds the idea that all contingent fee arrangements destroy a governmental client’s neutrality contrary to experience and implausible even in the realm of theory." Because, you know, the client generally has the right to call the most important shots in every contingent fee arrangement.
A big hat tip to Kimberly A. Kralowec, she of The UCL Practitioner, for the heads up. She’s promised to give her take on the decision tomorrow. We cannot wait. And we aren’t being ironic.
