July 26, 2010
Statement by Philip Curtis, counsel for the Atlantic Richfield Company, on today’s ruling in County of Santa Clara, et al. vs. Atlantic Richfield Co., et al. by the California Supreme Court on whether a public entity may retain private counsel to prosecute a public nuisance abatement action under a contingent fee agreement:
“The California Supreme Court today held that all contingency fee agreements in this case are deficient and must be rewritten. We believe the decision did not go far enough, however. We respectfully but strongly disagree with the Court’s ruling that contingency fee agreements can be appropriate in public nuisance actions if certain government control provisions are included in the agreements.
“Today’s ruling upends the fundamental legal principle that no attorney wielding the government’s police power may have a financial interest in the outcome. Americans rightly believe that neutrality is essential to a fair outcome. But when contingency fee lawyers assume the government’s prosecutorial powers, they substitute a personal profit motive for the impartial judgment expected of government lawyers. The scales of justice should not be tipped by a profit motive. The delegation of government police power to financially self-interested counsel is troubling and violates due process. The defendants are considering various options moving forward.
“It is noteworthy that the California District Attorneys Association, in an amicus brief supporting the defendants’ position, argued that the local governments’ current fiscal problems should not weaken the bright-line rule. The prosecutors said that the ‘rule prohibiting contingent fee attorneys in public nuisance cases cannot be trumped by claims of public entity poverty. Fundamental prosecutorial ethical rules cannot be subordinated to mere fiscal considerations.’
“Today, blood lead levels in California and nationwide are much lower than when this case began more than 10 years ago. The proven solution is enforcing the law against landlords who neglect their property, rather than engaging in wasteful litigation against companies that made a lawful product more than 50 years ago.
“This decision was not a ruling on the merits of the underlying public nuisance claim, which may continue. We look forward to proving that the public nuisance claim is wrong on the facts and the law. The Santa Clara case is the only public nuisance case remaining against former manufacturers. All other public nuisance claims have failed. Public nuisance cases filed in seven jurisdictions – Ohio, Rhode Island, Missouri, New Jersey, Illinois, New York and Wisconsin – have all been either rejected by courts or a jury, or voluntarily dismissed."
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