Note, however, that the California ruling does not rest on the separation of powers arguments that I disparaged. Rather, it rests on California principles about proper standards of conduct for government lawyers. It cites a 1985 California Supreme Court decision that invalidated contingent fees in government civil enforcement actions as sometimes analogous to criminal cases. Here is the key language of the Cal S Ct case:
The justification for the prohibition against contingent fees in criminal actions extends to certain civil cases. As discussed above, the rigorous ethical duties imposed on a criminal prosecutor also apply to government lawyers generally. “The county attorney is a county officer and as such is a representative of the people, although his duties relate only to civil matters.” (ABA Committee on Prof. Ethics, opn. No. 186 (1938).)In the recent case, California Superior Court Judge Komar rejected the argument that the earlier precedent doesn't apply in a nuisance suit where the contingent fee lawyers are closely supervised by government attorneys. That may or may not be right as a matter of California professional responsibility law. But California doesn't even bar all contingent fee arrangements in civil cases, and it bars the ones it does on grounds wholly different from the separation of powers arguments that I find unpersuasive.
Nothing we say herein should be construed as preventing the government, under appropriate circumstances, from engaging private counsel. Certainly there are cases in which a government may hire an attorney on a contingent fee to try a civil case.
As I said in my earlier post, there may be good policy reasons to be skeptical about many of these contingent fee arrangements. Olson and other tort reformers are no doubt right that there are some bad contingent fee deals out there. Olson's Wall Street Journal op-ed also raises the disturbing possibility that contingent fee lawyers in Rhode Island got no-bid business as a result of campaign contributions. And guess what? That's a disturbing possibility for all sorts of other programs, including, I don't know, say, billions of dollars to Halliburton and KBR. I'm looking forward to the embrace of campaign finance reform by those who favor tort reform.