CTW Attorneys on Unholy Alliance
05-28-2010

CTW Attorneys Christian and Casell on "Unholy Alliance"

In a May 28 op-ed in the Los Angeles and San Francisco Daily Journal, Shareholder Randy Christian and Associate Jason Casell discuss the "unholy alliance" between plaintiffs' lawyers and state attorneys general, a practice pioneered by former Texas Attorney General Dan Morales in the big tobacco litigation. In these alliances, state AGs enter into contingency fee arrangements with plaintiffs' attorneys to prosecute actions on the state's behalf.

These arrangements have now spread to other arenas, including financial services, environmental litigation, and general products liability. State AGs and government attorneys claim they lack the resources and expertise to pursue these types of cases without private plaintiffs' lawyers. But, as Christian and Casell discuss, the system has become corrupt, with plaintiffs' attorneys donating to AG campaigns in exchange for potential contingency windfalls for being selected to prosecute actions on the state's behalf.

The California Supreme Court just heard oral argument in a case that could reverse a longstanding precedent that defense attorneys have relied on for 25 years to prevent governments from entering into contingency fee arrangements with plaintiffs' lawyers.

"Attorneys representing the government are charged with seeking the public good, even if that means agreeing to injunctive relief or dropping a case without merit," the authors write. "When an attorney who is supposed to look out for the people's interests stands to profit personally from a monetary recovery, he compromises his ability to advance the public good above his own well-being. There are also serious concerns about the separation of powers among the government's branches."

The authors conclude that states should follow the examples of Texas and other states that require legislative approval of large contingency fee contracts. States can also mandate that attorneys take part in a competitive bid process, impose caps on contingency fee agreements, and prohibit attorneys who contribute to AG campaigns from collaborating with those officials in litigation.

"Delegating public enforcement power to private attorneys with a large financial incentive may make sense for those attorneys' pocketbooks, but it is not in the best interest of justice," Christian and Casell write. "The battle against the 'unholy alliance' must continue."