County of Santa Clara, et al. v. Superior Court
We filed an amicus brief in a case presenting the issue of whether government entities may retain and co-counsel with private attorneys on a contingent-fee basis to pursue a public nuisance action. Our brief supported the efforts of six California counties and four California cities suing the manufacturers of lead pigment for use in paint, seeking abatement of the alleged public nuisance created by the defendants. After seven years of litigation, the defendants moved to preclude the public entities from retaining private attorneys on a contingent fee basis. The trial court granted the motion and held that contingent fee arrangements are inherently antithetical to the standard of neutrality that attorneys representing the government must meet when prosecuting a public nuisance action. We filed a brief in both the Court of Appeals and the California Supreme Court arguing against this ruling because public-private collaboration in public nuisance cases is not only permitted under California law, but is also critical to ensure access to justice. On July 26, 2010, the California Supreme Court held that the cities and counties could hire private attorneys on a contingent-fee basis so long as the public entities’ in-house counsel retained control over all critical discretionary decisions in the litigation. The Court also clarified what elements of control must be specified in retention agreements between government entities and attorneys hired on a contingent-fee basis to prosecute public-nuisance abatement actions.