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					S163681
                IN THE SUPREME COURT
             OF THE STATE OF CALIFORNIA

                         COUNTY OF SANTA CLARA , et aI.
                                         Petitioners


       THE SUPERIOR COURT OF SANTA CLARA COUNTY
                                        Respondent
                   ATLANTIC RICHFIELD COMPANY , et aI.
                             Defendants/Real Parties in Interest.

AFTER A DECISION                                       , SIXTH ApPELLATE DISTRICT
                     CASE NUMBER
 FROM THE SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF
SANTA CLARA , HONORABLE JACK KOMAR SUPERIOR COURT CASE
                                           788657

     BRIEF                     IN SUPPORT OF THE
                     AMICUS CURIAE


             BRIEFS OF REAL PARTIES IN INTEREST

RONALD D. ROTUNDA *                                    AKIN GUMP STRAUSS HAUER &
THE
DISTINGUISHED PROFESSOR OF
                                                        FELD LLP
                                                       REx S. HEINKE (SBN 066163)
JURISPRUDENCE * *
                                                       JESSICA M. WEISEL
CHAPMAN UNIVERSITY SCHOOL OF LAW
                                                       2029 CENTURY PARK EAST , SUITE 2400
ONE UNIVERSITY DRIVE , RM. 406
                                                       Los ANGELES , CA 90067
ORANGE , CA 92866- 1005
                                                       TELEPHONE: (310) 229- 1000
TELEPHONE: (714) 628- 2698
 (motion pursuant to California Rule of                FACSIMILE: (310) 229- 1001
Court 9. 40(g) beingfiled)

** For identification purposes only

                     AMICUS CURlAENATIONAL
             ATTORNEYS FOR


   ORGANIZATION OF AFRICAN AMERICANS IN HOUSING
                            TABLE OF CONTENTS
DESCRIPTION AND INTEREST OF AMICUS CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

      BECAUSE GOVERNMENT LA WYERS MUST BE
      FINANCIALLY NEUTRAL WHEN GIVING ADVICE
      CLANCY PROHIBITS THE GOVERNMENT FROM
      PAYING ITS LA WYERS CONTINGENT FEES IN
      PUBLIC NUISANCE CASES .......................................................

      A. A
           Jurisdictions Acknowledges That Government
           Lawyers In Civil Cases Must Act For The Common
           Good , Not Personal Interests ...................................................

           1.    ClancyReflects A Settled Proposition  That
                Government Lawyers Have Special Ethical
                Obligations That Private Lawyers Do Not Share...............

           2. The Fee                        Is Indistinguishable
                                                     Clancy

                In All Relevant Respects From The Fee
                Agreements In           Santa Clara................................................




      B. It
           Their Public Positions To Favor The Financial
           Interests Of Private Lawyers ................................................ .11

      C.
           Are Supervising The Private Lawyers Or Complying
           With The Contingent Fee Agreement Because Of the
           Attorney Client And Work Product Privileges ......................

      D.
           Use........................................................................................ .

      E. The                                         ' Fees Contingent
           On Securing A Divorce Demonstrates That The
           Holding Of The                   Court Is Contrary To The
                                    Santa Clara

           Law Of Legal Ethics............................................................ ..
  II.   TO ALLOW PRIVATE LAWYERS , REPRESENTING
        THE STATE TO PROSECUTE PUBLIC NUISANCE
        ACTIONS , TO PERSONALLY PROFIT FROM
        CONTINGENCY FEES VIOLATES DUE PROCESS ...............

CONCLUSION
                                                    TABLE OF AUTHORITIES
CALIFORNIA                                      CASES
County of Santa Clara                                   v.   Atlantic Richfield Co.
         13 7


County of Santa Clara                                   v.   Superior Court
         74 Cal. Rptr. 3d 842 (2008) ............................................................. passim

Krieger         Bulpitt     v.

        40 Cal. 2d 97 (1953) ......................................................................... 16 , 17

People ex reI. Clancy                              v.        Superior Court
         39 Cal. 3d 740 (1985) ...................................................................... passim

People          Conner v.


         34 Cal. 3d 141 (1983) ............................................................................. 20

People                 v.             Superior Court (Greer),
         19 Cal. 3d 255 (1977) ....................................................................... 20 , 23

FEDERAL                                 CASES
Aetna Life Insurance Co.                                      v.   Lavoie
        475 U. S. 813 (1986).......................................................................... 22 , 23

Douglas                          v.    Donovan
         704 F. 2d 1276 (D. C. Cir. 1983) ................................................................ 6

EEOC                  v.         Datapoint Corp.
         457 F. Supp. 62 (W. D. Tex. 1978)............................................................. 7

Ganger          Peyton      v.


         379 F.2d 709 (4th Cir. 1967) ........................................................... .. 20

Gray Panthers           Schweiker          v.


         716 F. 2d 23 (D. C. Cir. 1983) ....................................................................

Jones            v.         Heckler
         583 F. Supp. 1250 (N. D. Ill. 1984) ............................................................ 7

Reid        v.        INS.
         949 F. 2d 287 (9th Cir.1991) .....................................................................




                                                                              111
Tumey          Ohio
                  v.

        273 U. S. 510 (1927) .................................................................... 19

United States                v.   Sumitomo Marine         Fire Ins. Co.
        617 F. 2d 1365 (9th Cir. 1980) .................................................................. 7

Ward          Village of Monroeville
             v.

        409 U. S. 57 (1972) ............................................................................

Young             v.    us. ex
        481 U. S. 787 (1987) ..............................................................                , 24

OTHER STATE CASES
State       v.         Lead Industries Association , Inc.        951 A. 2d     428 (R. !. 2008) .......... 7

STATUTES
42 U. C. g 4821 ........................................................................................... 2

Cal. Gov. Code g 1126.................................................................................

Cal. Health & Safety Code , g 17920. 10........................................................ 2

RULES AND REGULATIONS
Cal. Admin. Code tit. 17 , g 35037 .................................................. .............. 2

Cal. Rule of Prof. Conduct 5- 310 ............................... ................................ 18

OTHER AUTHORITIES
61 Ops. Cal. Atty. Gen. 18
  (January 5 , 1978), 1978 WL 22721 ........................................................

ABA Model Rules on Professional Conduct , Rule 1.5......................... 16 , 19

Calif. Jurisprudence 3d (W

Center for Legal Policy at the Manhattan Institute
  Manhattan Inst. Conference Series Vol. I , Regulation by Litigation:
  The New Wave of Government- Sponsored Litigation (1999) ............... 14

Editorial The Pay- to- Sue Business: Write a Check
  Get a No-Bid Contract to Litigate for the State
  WALL Street JOURNAL , April 16 , 2009................................................... 15
              , .




Lester Brickman Contingent Fees without Contingencies:
  Hamlet without the Prince of Denmark?
  37 U. L.A. L. REv. 29 41- 42 (1989) ...................................................

Model Code of Professional Responsibility EC 7- 14 (1981) ....................... 6

Model Code of Professional Responsibility EC 7- 20 (1981) ....................... 6
Paint Industry s Appeal Of Contingent Fee Contract
  Will Be Heard By Calif. SC LEGAL NEWSLINE. COM
  July 24 2008 ........................................................................................... 15

Restatement of the Law Governing Lawyers , Third (ALl. 2000).... 8 , 17 , 19

Ronald D. Rotunda & John E. Nowak , Treatise on Constitutional Law:
  Substance and Procedure (Thomson- West , 4th ed. 2008) ...................... 21

RONALD D. ROTUNDA & JOHN S. DZIENKOWSKI , LEGAL ETHICS:
  THE LAWYER S DESKBOOK ON PROFESSIONAL RESPONSIDILITY
   (ABA & Thomson- West , 2008- 2009 ed. )............................................... 22

Testimony of Honorable Christopher Cox , Subcommittee on
  Courts and Intellectual Property, Dec. 12 , 1997............................... 14 , 16

The Restatement of Contracts , Second (1981) ........................................... 17

WILLISTON ON CONTRACTS (4th ed. ).......................................................... 17

WITKIN , CALIFORNIA PROCEDURE (5th ed.
(''




                     DESCRIPTION AND INTEREST OF AMICUS CURIAE
          Amicus the National Organization of African Americans in Housing
      NOAAH'' )(http://www. noaah. orgl) is a national nonprofit organization that provides
technical , operational , and other support to its members and offers opportunities for
economic development. Its members and NOAAH advocate cooperative partnerships
with industry and government to design and implement fair housing policies and
programs , to formulate innovative strategies that improve the quality of housing and
services delivery, and to promote healthy, vibrant communities.
           Because African American and other minorities often live in older , deteriorating
housing (pre- 1950s construction), millions of their children are at risk of mental
retardation , impaired growth , respiratory infections , chronic diseases , even death.
NOAAH' s data reveal that 22% of African American children living in older
predominantly urban housing experience elevated blood lead levels.
housing authorities , property owners , and managers of affordable housing to keep pace
with the costs of necessary physical improvements , environmental safeguards , and
education programs represents a significant challenge to policy makers , housing
advocates , and industry.
           NOAAH' s Healthy Home Initiative is committed to identifying solutions to this
crisis that strike a balance between the need to make costly environmental and physical
improvements to the nation s affordable housing stock and provide decent , safe and
quality housing for the families who live there. As part of its Healthy Home Initiative
NOAAH researches best practices to educate communities to health hazards concerning
lead- based paint. NOAAH is familiar with California s comprehensive lead programs



               http://www. noaah. org/LBPHomes. cfm . Lead in paint
restricted in 1978; lead solder in food cans was banned in the 1980s; lead in gasoline was
removed during the early
                     E.g. http://www. cdph. ca. gov/PROGRAMS/CLPPB/Pages/default.aspx.


400010. 0011 WEST 6358236 v3
                                                                                        ,g




and it has monitored California s success in reducing incidences of new cases of children
with elevated blood lead levels. As these programs demonstrate , the best way to reduce
and eliminate lead poisoning in minority children is through providing resources to
housing authorities , property owners , and managers of affordable housing to eliminate
lead hazards on their properties. This litigation against
and resources and threatens to interfere with existing programs that have a meaningful
impact on improving the quality of housing available to poor, minority populations living
in older , deteriorated housing.

                                  SUMMARY OF ARGUMENT

            Several California counties and cities have hired private lawyers to file
contingency fee lawsuits claiming lead paint or pigment manufactured and sold decades
ago should be (retroactively and creatively) declared a "nuisance. " However , paint
manufacturers stopped making interior residential lead- based paints over a half-century
ago , decades before Congress enacted a federal law dealing with lead based paint , 42
       C. g 4821 (1971). State law
      Plaintiffs seek to have the court order the paint' s original producers to pay for its
removal , even if the paint is not hazardous 4 even if the effort to remove the paint will
create (rather than abate) a hazard , and even if the owners of the property do not want the

              The State of California , pursuant to the Childhood Lead Poisoning
Prevention Act , Cal. Health & Safety Code , gg105275- 105310 , regulates this area; it
makes property owners (not the paint manufacturers) responsible to prevent and abate
lead hazards in buildings. To fund enforcement of            , California imposes fees from
manufacturers and sellers of products that historically contributed to environmental
health dangers.

               The California law provides that the lead paint must be " deteriorated" to be
a hazard.E.g. Cal. Health & Safety Code , g 17920. 10; Cal. Admin. Code tit. 17
35037. Cal. Admin. Code tit. 17 , g 35037 provides:
        Lead hazard' means deteriorated lead- based paint lead contaminated
      dust , lead contaminated soil , disturbing lead- based paint or presumed lead-
      based paint without containment , or any other nuisance which may result in
      persistent and quantifiable lead exposure. " (Emphasis added).
paint companies to access their property. The former lead pigment or paint
manufacturers can avoid this liability if they pay money directly to the government to
settle this lawsuit; the government need not use this money to remove lead paint , but it
must pay 17% to the contingent fee lawyers.
       The issue in this case is whether government lawyers                                            notwithstanding the
California statutory scheme that already governs this issue
on a contingent fee basis to sue the former lead pigment or paint manufacturers for
engaging in conduct that was perfectly legal at the time they engaged in it. May the
government deputize private lawyers with a financial motive to bring these public
nuisance suits and confer on them a mantle of legitimacy and state endorsement?
                                                                ARGUMENT
       BECAUSE GOVERNMENT LAWYERS MUST BE FINANCIALLY
       NEUTRAL WHEN GIVING ADVICE                 THE                                CLANCYPROHIBITS

       GOVERNMENT FROM PAYING ITS LAWYERS CONTINGENT FEES
       IN PUBLIC NUISANCE CASES
                   A Long Tradition                      In   The Case Law Of All Jurisdictions
                   That Government Lawyers                            Civil Cases Must Act For The Common
                                                                          In

                   Good , Not Personal Interests
                               ClancyReflects A Settled Proposition That Government
                               Lawyers Have Special Ethical Obligations That Private
                               Do Not Share.
       In   People ex reI. Clancy                  v.     Superior Court 39 Cal. 3d 740 (1985), a city hired a
private lawyer on a contingent arrangement that, in effect , doubled his hourly rate if he
prevailed in filing his nuisance action. The California Supreme Court held that
arrangement is prohibited. The contingent fee
stake in the outcome of the abatement action " antithetical to the standard of neutrality
that an attorney representing the government must meet when prosecuting a public
nuisance abatement action.                   Id.        at 750. The Court of Appeal held that                 Clancy   does not
prevent cities and counties from hiring contingent fees attorneys as long as a City or
County Attorney (hereinafter " City Attorney ) adds boilerplate language to a contract or
                                                                                                             ,"




otherwise declares that the City Attorney will supervise the lawyer who is deputized
the Government to enforce state law but is paid by a contingency fee.                                                        County of Santa
Clara      v.   Superior Court              74 Cal. Rptr. 3d 842 (2008). As                         Clancy         points out , even if "the
retainer agreement between the City " and the private lawyer "provides that Clancy is to
be ' an independent contractor and not an officer or employee of City, '" that does not
change the fact that " a lawyer cannot escape the heightened ethical requirements of one
who performs governmental functions merely by declaring he is not a public official.
The responsibility follows the job: if Clancy is performing tasks on behalf of and in the
name of the government to which greater standards of neutrality apply, he must adhere to
those standards.

            History reinforces what our common sense already knows:
judgment. If
affect the kind of advice that the lawyer gives and how he acts.
Ryszard Kapuscinski , the famous Polish journalist , advises us Money changes all the
iron rules into rubber bands. "                     His counsel

Sophocles warns us in                  Antigone         that money " teaches and corrupts the worthiest minds to
turn base deeds.
            The basic principle teaches us that the Sovereign cannot pay                                            judges       a contingency
fee , because the money affects their judgment , even though a reviewing court exists to
reverse any errors. The Sovereign cannot pay                                    government prosecutors                       a contingency fee
in criminal cases , even though a judge and jury decide guilt and the sentence , because the
fee taints their judgment to indict                       , and the Sovereign cannot pay                          government lawyers a
contingency fee in public nuisance cases even though they are civil cases , because the
contingency fee may affect their judgment away from a focus on the public interest. As
Clancy          noted:
            (The) prosecutor duty of neutrality    is born of two fundamental aspects of
            his employment. First , he is a representative of the sovereign; he must act
            with the impartiality required of those who govern. Second , he has the vast


                         Clancy,       39 Cal. 3d at 747.
       power of the government available to him; he must           refrain from abusing
       that power                                   These duties are not limited to
                                 by failing to act evenhandedly.

       criminal prosecutors:    A government lawyer in a civil action or
       administrative proceeding has the responsibility to seek justice and to
       develop a      and fair record , and he should not use his position or the
                              full

       economic power of the government to harass parties or to bring about
       unjust settlements or results.
        When the lawyer representing the Sovereign has " a personal interest in the
litigation , the neutrality so essential to the system is violated. 7 It is hard to think of
something more personal than a financial stake in the litigation. That stake is substantial.
The private lawyers personally invest millions of dollars in mammoth lawsuits like this
one by paying all litigation expenses upfront. They seek much more in return-billions
of dollars in fees went to contingency fee lawyers in the tobacco litigation.
personal incentive is antithetical to fundamental ethical and constitutional principles of
justice , fair play and lack of financial bias, all essential to public confidence in the
integrity of the Government and the judicial system.
       Clancy        simply applies principles that other state and federal courts have
articulated for many years. Government lawyers
private lawyers. When the Government hires private lawyers on an contingent fee basis to
prosecute a private suit like the instant one , the contingency fee interferes with the ethical
and constitutional obligations of the Government. The Government, in short , may hire
private law firms , but it may not pay them a contingent fee. This case is not about
disqualifying a law firm; it is about prohibiting an inherently flawed method of paying
the lawyer.


                    39 Cal. 3d at 746 (emphasis added , citation omitted , citing ABA
                    Clancy,

Model Code of Professional Responsibility, EC 7- 14).
                    Clancy,             39 Cal. 3d at 747.
        8 Hence , the Court of Appeal was in error when it claimed that the trial
judge s order (prohibiting contingent fees) "would result in unjustifiably depriving the
public entities of their right to counsel of choice. Santa Clara 74 Cal. Rptr. 3d at 846.
The Government can pay the lawyers a flat fee        most government lawyers are hired by
the year. Or , the Government can pay an hourly fee. Or , it can pay a flat fee to handle a
                                                                                                ).




       Clancy       is no judicial orphan.                                                            civil cases , both state
and federal , that has recognized that the duty of the Sovereign and the Sovereign
representative in court is to do justice , not simply to win. Thus                             Reid      v.   INS.   949 F.
287 288 (9th Cir. 1991), held that it was appropriate for a government lawyer to confess
error because the Government lawyer " has an interest only in the law being observed, not
in victory or defeat in any particular litigation.                   Gray Panthers             v.     Schweiker 716 F.
    33 (D. C. Cir. 1983), advised that government lawyers have a
large and may not use their position or the economic power of the government to bring
about unjust results.
       Douglas        v.   Donovan 704 F. 2d          1276 , 1279- 80 (D. C. Cir. 1983), similarly

embraced what was , until now , a long-settled principle                              government attorneys , even in
civil cases      have special responsibilities to both this court and the public at large.
(Emphasis added. ) 1 0


particular case. None of these fee arrangements is likely to affect the judgment
lawyer or the advice that he offers; a contingency fee inherently affects that judgment.
                The Court said:
         (C)ounsel for the government , no less than their colleagues in the private
        sector , are bound by the same obligations to the court. There is , indeed
       much to suggest that government counsel have                      to uphold
                                                                               a higher duty

       because their client is not only the agency they represent but also the public
        at large. Cf. Model Code of                                        14 (1981)
       ('A   government lawyer in                ... has the responsibility to seek
       justice and to develop a full and fair record           should not use his
                                                                        , and he

       position or the economic power of                      to harass parties or to
       bring about unjust settlements                 or results. ' " (Emphasis added.
        10
        As officers of this court , counsel have an obligation to ensure that the
       tribunal is aware of significant events that may bear directly on the outcome
       of litigation. See , e. , Model Code of Professional Responsibility EC 7-
       (1981) ('our adjudicative process requires an informed , impartial tribunal
       capable of administering justice promptly and efficiently This is
       especially true                            , who have special responsibilities
       to both this court and the public at large.  See , e. , Model Code of
       Professional Responsibility EC 7-                                        in a
                                                         14 (1981) ('(a) government lawyer
            EEOC           v.   Datapoint Corp. 457 F. Supp. 62 ,                                  65 n.10 (W. D. Tex. 1978), is yet
another case in a long string of cases advising us that the                                                        government is a wealthy
litigant and can , if it so choses, make litigation so expensive as to
legal rights.         Because of the                peculiar power of the government litigator                                            he is        subject to
ethical consideration beyond the ordinary litigator. (Internal citations omitted; emphasis
added. )

            United States              v.   Sumitomo Marine                       Fire Ins. Co.                    617 F. 2d 1365 , 1370 (9th Cir.
1980), likewise explained: " The                              effectiveness of and need for harsh measures is
particularly evident when the disobedient party is the government."                                                               Jones           v.   Heckler
583 F. Supp. 1250 , 1257- 58 n. 7 (N. D. Ill. 1984): " A government lawyer who has
discretionary power relative to litigation should refrain from instituting or continuing
litigation that is obviously unfair.
            Clancy          continued this wise tradition; the Court of Appeal in                                                Santa Clara              breaks
from it. II
                                       The Fee Agreement                    In         Clancy             Is Indistinguishable                    In All
                                       Relevant Respects From The Fee Agreements                                                     In    Santa Clara.

            Clancy          reflects what the Restatement of the Law Governing Lawyers , Third (ALl.
2000) considers settled law. Both the Restatement of
the Reporter           s Notes to the Restatement do        the way that the Court of
                                                                                 not       interpret            Clancy



Appeal does. 12 They conclude that the Government may not compensate its lawyers



            civil action ... has the responsibility to seek justice and to develop a full and
            fair record' " (Emphasis added.
            11
reinterpretation of California law departing from          but that is hardly precedent         Clancy,


because the Rhode Island Court said that it specifically reserved the right to change its
result in the next case.         Lead Industries Association , Inc. 951 A.2d 428 , 474-
                                            State     v.

469- 7 n. 50 (R. I. 2008). Preserving the
the private lawyers responsible for litigation costs owed by the State to defendants.
             12
                           f. Advancing a                                                                                   . ... Courts have
            stressed that a
(whether employees or independent

prosecuting a public nuisance action , because the fee arrangement may



       advance the public interest in the representation and not merely the partisan
       or personal interests of the government entity or officer involved.
Restatement of the Law Governing Lawyers , Third , g 93 , Comment! Later, the
Reporter s Note to Comment,!, cites inter alia           and it does not discover the
                                                                               , Clancy

limitation that the Court of Appeal created in                               Santa Clara:


            Silverman      Ehrlich Beer Corp. 687 F. Supp. 67 , 69- 70 (S.
                                v.                                             Y.1987)
            (attorney representing government in seeking criminal-contempt sanctions
            held to higher standard than private practitioner performing same function);
           People ex rei. Clancy       Superior Court 705 P. 2d 347 351 (Cal.1985),
                                                    v.

            cert. denied , 475 U. S. 1121 , 106 S. Ct. 1638 90 L.Ed. 2d 184 (1986) (same
            with respect to private lawyer representing city in public-nuisance
            abatement action against adult book store).
Restatement of the Law Governing Lawyers , Third , g 93                                            , Comment        reemphasizes this
point:
            i.
           A lawyer in private practice may be retained by a governmental
           organization for representation in a specific matter, in a series of matters , or
           as outside general counsel. . . . With respect to activities involved in the
           representation , the lawyer must also comply with applicable restrictions and
           requirements governing the representation of governmental clients by
           government lawyers. For example , a lawyer in private practice retained to
           function part- time as a public prosecutor operates in that regard subject to
           restrictions on prosecutors with respect to their              disclosure        advocacy,

           obligations            , and       (see generally Comment h hereto),
                                          similar matters

           notwithstanding that the lawyer would not be so constrained in
            representing nongovernmental clients.    Such a lawyer may also be subject
           to special conflict-of-interest restrictions applicable to governmental
            lawyers or officers (see generally g 133 (former government lawyer)).
           Similar restrictions apply to such a lawyer retained to represent a
            governmental client                            (see Comment h hereto).
                                                 in a noncriminal matter

           (Emphasis added.
The Reporter            s Notes to Comment                      also cite:Superior Court
                                                                               People ex rei. Clancy           v.

705 P.                     cert. denied 475 U. S. 1121 , 106 S. Ct. 1638 90 L.Ed. 2d 184
           2d 347 (Cal.1985),


(1986) (private practitioners hired to file public-nuisance abatement action against adult
book store could not be compensated on a contingent- fee basis , requiring disqualification
oflawyers so retained).
                                                                                               ,"




would certainly appear to the public to influence-the judgment of the lawyers giving
advice.
             Not only the logic of                        Clancy    but the language of                 Clancy      rejects the Appellate
Court'       s creative and inventive gloss on                            Clancy,         which rejects the Appellate Court' s novel
claim that          Clancy        would not apply if there were some language in the contract saying that
the City Attorney is really the one in charge:
                                     It is true that the retainer agreement between the City
                             and Clancy provides that Clancy is to be " an independent
                             contractor and not an officer or employee of City. " However
                             a lawyer cannot escape the heightened ethical requirements of
                             one who performs governmental functions merely by
                             declaring he is not a public official. The responsibility
                             follows the job: if Clancy is performing tasks on behalf of and
                             in the name of the government to which greater standards of
                             neutrality apply, he must adhere to those standards.
Clancy,         39 Cal. 3d at 747.
             The essential rationale and language of                                  Clancy         apply to the      Santa Clara              case.
             Nonetheless             , the     Santa Clara           Appellate Court says that the                     Clancy        decision             must
be limited to the facts upon which the
Cal. Rptr. 3d at 850 (emphasis added). The difference , the Appellate Court tells us , is the
fee agreement , but the Appellate Court'                                  s assumption about the fee agreement in                                Clancy



in error: the City               s agreement with the private lawyer in                                  Clancy     is identical in all relevant
respects to the cities                   ' agreements with the private law firms in the                               Santa Clara               case. 13




              13           the agreement with the private lawyer is basically the same as
                               Clancy,

the contracts that the public entities signed in the present case. They all use similar
boilerplate language. In           the City employed the private lawyer
                                                Clancy,                         to assist the
City Attorney of CITY , when and as requested by said City Attorney to do so , in
connection with litigation to abate certain conditions. . . . " And , the private lawyer in
Clancy,  like each private lawyer in the present case agrees that in each and every case
suit or proceeding in which he undertakes to assist the City Attorney of CITY , as
aforesaid , shall be and shall remain under and subject to the control and direction of said
City Attorney or the City Council of CITY at all stages, and that he shall at all times keep
said City Attorney informed of all matters pertaining thereto. . ..          Motion for                                  See
            The Appellate Court does not quote the contract at issue in                                        Clancy.   If it had , it
could not have construed                       Clancy    the way it did.
reread prior legal decisions in that way, then precedents of the California Supreme Court
will be like discount railway tickets , good for this day and train only.
            In addition , not all the contracts at issue in this case even contain the boilerplate
that the Court of Appeal says is necessary. One of the contracts at issue in this case
the words of the Court of Appeal- purports to grant private counsel ' absolute
                                                                                                         14 But , we are told not to
discretion in the decision of who to sue and who not to sue.
worry. In the case of Oakland , the City Attorney has now decided to ignore the old
language and draft new language. So , clever drafting replaces ethical and constitutional
principle.
            Finally, these private lawyers are acting in the shoes of government lawyers; they
have filed appearances; they appear on behalf of the Government. They are not mere
scriveners , whose job it is to deliver papers that others have drafted.


Judicial Notice dated May 10 2008 (RJN), Exhibit A , at pp,. 12- 14 (Agreement for Legal
Services , pp. 1- 3).
            Here is what the               Santa Clara                    new and improved
                                                                Court of Appeal claims about the


contracts in that case:
              In contrast (to    where private counsel are merely assisting
                                         Clancy),


       government attorneys in the litigation of a public nuisance abatement action
       and are explicitly serving in a subordinate role , in which private counsel
            lack any decision-making authority or control , private counsel are not
            themselves acting ' in the name of the government' and have no role in the
              balancing of interests ' that triggers the absolute neutrality requirement."
            74 Cal. Rptr. 3d at 850.

       In the case of Solano , the private counsel has said (apparently in light of the Court
of Appeal'           s creative reinterpretation ofthat Solano s in- house counsel will really
                                                                     Clancy)


be exercising authority, no matter what the contract really says.    Santa Clara 74 Cal.
Rptr. 3d at 1150 , n. 7. In another instance , San Mateo said it was attaching a contract , but
did not attach it.              Id.   at 1150 , n. 9.         Yet the Court of
the in- house    counsel said he really would be in charge.  The looseness with which the          Id.


Cities and the Court of Appeal have treated the contracts gives little comfort.
             14
Government sells its duties to private lawyers , the special responsibilities of the
Government must follow.
                       It Is Wrong For The Government Lawyers To Use Their Public
                       Positions To Favor The Financial Interests Of Private Lawyers
           The principle that              Clancy        embraces              and the rule that   Santa Clara       rejects
reflected in Government Code g                                                                           a local agency officer
or employee shall not engage in any employment, activity, or enterprise for compensation
which is inconsistent , incompatible , in conflict with , or inimical to his or her duties as a
local agency officer or employee or with the duties , functions , or responsibilities of his or
her appointing power or the agency by which he or she is employed. "                                             Cal. Gov.

g 1126(a).
 prestige , or influence of his or her local agency office or employment." Cal. Gov. Code
g 1126(b ).                                                                                                                   special
counsel employed by a county on a contractual basis. " 61 Ops. Cal. Atty. Gen. 18
(January 5 ,        1978), 1978 WL 22721 , at *5- *6.
                       There Is No Way to Determine If The City Attorneys Are Supervising
                       The Private Lawyers Or Complying With The Contingent Fee
                       Agreement Because Of the Attorney Client And Work
                       Privileges
           We do not know , and we can never know , how these contracts were negotiated
with the private law firms whom the Government lawyers have deputized to litigate in the
name of the Sovereign. We will never learn what                                                                        supervision
because the Government lawyers and the private lawyers claim attorney- client privilege
and work product privilege. They rely on the
as to how (or if) the City Attorney will really " supervise.
           These Government lawyers in                           Santa Clara          claim that the private law firms have
 unique skills , ability, and experience. . . . ,,15 Yet , the Government lawyers
simultaneously (and inconsistently) claim that the Government lawyers will                                            not    defer to


                        Petitioners ' Appendix , at p. 234.
                                                  ,"




that special expertise. They will instead                                         de novo       review and              de novo
supervIsIOn.
              We have no idea how (or if) the Government lawyers can supervise all the
discretionary judgments that any litigator has to make in the course of discovery,
interrogatories , negotiation , and trial because , once again , the opaque curtain of the
attorney- client and work product privileges cover their actions: We also have no idea
how the Government lawyers can claim that the private lawyers have " unique skills
ability, and experience " but yet simultaneously claim that the Government lawyers will
consistently second- guess these lawyers with unique skill. We do not accuse anyone of
wrong- doing; we simply point out that there is no way to knoW.
              We know that there is no way for the trial court to police the actions of the
government officials as long as the Government pleads the attorney-client and work
product privileges.
              We do know
     that the reason for Constitutional restrictions , the reason for the ethics rules governing
lawyers       , and the reason for the          Clancy        case is that we should not blindly trust the lawyers
chosen to represent the Government. Indeed, ancient history has consistently taught us


              16
strict liability, negligence , unfair business practices                        County of
                                                                                   , and public nuisance.


Santa Clara       Atlantic Richfield Co. 137 Cal.App.4th 292
                      v.                                                      Then , in January   300       (2006).


2007 , the public entities (" aided" by the " subordinate " private law firms) filed a proposed
fourth amended complaint alleging a single representative public nuisance cause of
action; this time they only sought abatement.      Santa Clara 74 Cal. Rptr. 3d at 845.
       The Court of Appeal said Throughout this litigation , the public entities have
been represented by both their in-                                              However , at
                                                     house counsel and private counsel."                              Id.


least one of the private law firms is listed in the second case , 74 Cal. Rptr. 3d at 843 , but
it is   listed in the first one , 137 Cal.App.4th 292. Why? And why change the cause of
        not


action? Is that a decision                                        , or was it influenced by
private
       If the private counsel influenced the decision , did their motives include personal
profit? We do not
closed curtains do not bode well for public trust.
that " the love of money is the root of all evil." Where money is on the
when the stakes between winning and losing are so
do the right thing. We never                                     , we should follow the protections of the
Clancy        case.
            The Government lawyers claim that the present situation is completely different
from     Clancy.
                 17 Why? Because the Court of Appeal said:

                      The public entities argue that    Clancy absolute neutrality
                      requirement does not apply here because private counsel have
                      not been engaged as the sole representatives of the public
                      entities    , as James Clancy was in        but only to assist the
                                                                      Clancy,

                      government attorneys who are prosecuting this action on
                      behalf of the public entities. Unlike James Clancy, private
                      counsel do not have decision-making authority and the power
                      to control the litigation , both of which have been retained by
                      the public entities ' in- house counsel. The public entities claim
                      that the limited and subordinate role of private counsel does
                      not justify applying the absolute neutrality requirement to
                      them. 18

               The Court of Appeal bought that argument , but the facts do not , and cannot
support it.
                      Whenever a public entity hires outside counsel , the public entity is also
                      represented by its in- house counsel. That is always true.
                      Clancy.

                   . We                                                             , contingent fee
                     counsel , particularly given the fact that there can be no discovery to make
                     sure that the government lawyers are not rubber-stamping whatever the
                     contingent fee lawyers want.

                      There is no way to determine if the boilerplate language in the contracts
                      means anything.

                      The contracts in             Santa Clara   are similar to the contract in   Clancy.



                      Clancy,       39 Cal. 3d 740.
                      Santa Clara            74 Cal. Rptr. 3d at 848.
               Contingency Fees Take Money Away From Public Use
       It is commonly, and erroneously, assumed that the Government, when it hired a
private law firm on a contingency fee , is hiring counsel for free. Consider the claim
then- Attorney General of New York State Eliot Spitzer , who argued that it was one of the
 misconceptions about the tobacco settlement is that the attorneys ' fees are coming out of
the public s pocket. That is not the case. . . . ,,19 But the fees do come out of the public
pocket.
       As a matter of simple economics , Eliot Spitzer s claim is fallacious. Whether we
are talking about the tobacco litigation or the proposed lead paint litigation , the economic
analysis is the same.                                         , it is of no economic
consequence to the defendant as to how the plaintiff and its counsel divide up the total
settlement dollars that the defendant must pay. As former U. S. Congressman, from
California , Christopher Cox , noted , while then SEC Chairman:
               It is specious to argue that these $45- 55 billion in (attorneys
               fees are not being diverted out of the funds available for
               public health and taxpayers. The tobacco industry is willing
               to pay a certain sum to get rid of these cases. That sum is the
               total cost of the payment to the plaintiffs   and their lawyers.


               is a matter of indifference to the industry how the sum is
               divided - 75% for the plaintiffs and 25% for their lawyers , or
               vice versa. That means that every penny
               plaintiffs                                        in the
               settlement or not' - is money that the industry could have
               paid to the states or the private plaintiffs. Excessive
               attorneys ' fees in this case will not be a victimless crime.




          19                                                                , Manhattan Inst.
Conference Series Vol. 1 , Regulation by Litigation: The New Wave of Government-
Sponsored Litigation , at 23 (1999) (Statement of the Honorable Eliot Spitzer).
          20                                                  , Subcommittee on Courts and
Intellectual Property, Dec. 12 , 1997 available at
http://www. afn. org/~afn54735/tob971210a. html (last visited April 16 , 2009)(emphasis in
original).
In short , contingency fee contracts divert large sums from the public treasury into private
pockets.
       Contingency fee contracts can raise an odor of corruption. In Pennsylvania, a
contingency fee contract has attracted attention because of the " pay to play" aspects
where the law firm has given campaign contributions to the Governor and then received a
                            21 Parceling out these lucrative contracts is a form of political
lucrative no- bid contract.
patronage; the winners are the private law firm and the loser is the public interest.
       As former Congressman Christopher Cox noted , when analyzing the
Government's last major experience in hiring contingent fee lawyers to represent the
Government in the Government's Courts:
              F or                             , Mr. Chairman , these sophisticated
              litigants     do not seem to have engaged in
              bargaining with their lawyers.After analyzing all the state
              fee agreements, Professor John Strait of Seattle University

       21
stink raised in the media reflects and engenders a loss of faith in the fairness and integrity
of the judicial process. The attorneys for the defendant, Janssen Pharmaceutica , argued:
  Indeed , the role of the Governor s General Counsel in the retention of Bailey Perrin , the
timing and amounts of Mr. Bailey s campaign contributions , the terms of the contingent
fee agreement , and the involvement of Bailey Perrin in other Risperdal-related litigation
that might be affected by this lawsuit combined to give rise to a manifest appearance of
impropriety -- the impression that the government' s prosecutorial decisions have already
been infected by impermissible considerations. " Quoted in , John O' Brien Paint
Industry s Appeal Of Contingent Fee Contract Will Be Heard By Calif. SC LEGAL
NEWSLINE. COM , July 24 2008 http://legalnewsline. com/newsI214352- paint- industrys-
appeal-of-contingent- fee-contract-will- be- heard- by-calif.-sc (last accessed , April 16
2009).
        See also Editorial The Pay- to- Sue Business: Write a Check, Get a No-Bid
 Contract to Litigate for the State WALL Street JOURNAL , April 16 , 2009
http://online. wsi. com/article/SB 123984994639523745 . html#mod=di emEditorialPage#mo
 d=diemEditorialPage( 4/16/2009 (last accessed , April 16 , 2009):
          It' s some racket. The plaintiffs ' attorneys come up with novel legal
        theories under which to sue companies or entire industries. They then
        solicit state AGs (or cash- hungry Governors like Mr. Rendell) to retain
        them to bring cases on behalf of the government on a contingency-
        basis.
              Law School told the Seattle Times recently, " What I don
              understand is why the other attorneys general didn
              (negotiate better contracts)       re not talking about
              groundbreaking techniques in negotiations. It's just odd that
              so many went with vague definitions and large fee amounts.
              It rimy be that here , as in so many cases , Governments proved
              unable to drive the kind of hard bargain that a profit- driven
              business would. It may be that the renowned political clout of
              these wealthy law firms played a part: the 89 firms in
              question reportedly contributed $3. 8 million to federal
              candidates alone over the past two years.
               The Prohibition Against Attorneys ' Fees Contingent On Securing A
               Divorce Demonstrates That The Holding Of The               Court Is
                                                                       Santa Clara


               Contrary To The Law Of Legal Ethics

       The law commonly prohibits contingency fees that put the attorney s financial
incentives in conflict wi th the client's or public s best interest. The general rule , in
California and other jurisdictions , is that a client may not pay a lawyer a fee contingent
on procuring a divorce. The rationale for this prohibition is that such a fee is contrary to
public policy because it induces lawyers to discourage reconciliation. The contingent fee
encourages lawyers to give advice that is contrary to public policy.
longer financially neutral.



       22                                                     , Subcommittee on Courts and
Intellectual Property, Dec. 12 , 1997 available at
http://www. afn. org/~afn54735/tob971210a. htm1 . (last visited April 16 , 2009)(footnotes
omitted).
       23
               E.g.. ABA Model Rules on Professional Conduct , Rule 1.               Krieger
                                                                                 5(d)(I).


v. Bulpitt 40 Cal. 2d 97 , 100 (1953): " Unquestionably, a contingent fee contract between
an attorney and his client looking to the institution of a divorce action is void as against
public policy. " Calif.
2009)(" Circumstances affecting validity of contingent fee agreements-- Dissolution of
marriage
       A long line of authority embraces this rule. " Contingent fee arrangements are also
prohibited in marital dissolution cases (because) ' a promise that undermines a marital
relationship by tending unreasonably to encourage divorce or separation is
unenforceable. '" Lester Brickman Contingent Fees without Contingencies: Hamlet
            The rationale for barring a fee contingent on procuring a divorce is that the
contingency fee provides incentives to the lawyer that are not in the public interest.
is exactly the same rationale that this Court used when it barred the Government from
paying contingency fees to a private lawyer to bring public nuisance actions in                                       Clancy.
            The Court of Appeal in this case argued that we should not
the contingency fee contracts involved in                               Santa Clara          have a boilerplate provision stating
that the City Attorney or other Government official will have the final say.
            However , that is not enough to avoid the problem. That should be clear from the
rationale of California and other courts in the divorce situation. In the divorce case , the
lawyer can neither prevent nor require reconciliation. Only the husband and wife can do
that.    Yet, the law still prohibits the contingency fee

arrangement may encourage the lawyer to give the wrong advice.                                            A fee contingent on
securing a divorce " creates incentives inducing lawyers to discourage reconciliation and
                                                                                  24 The contingent fee encourages (but
encourages bitter and wounding court battles.


without the Prince of Denmark? 37 U. L.A. L. REV. 29 41- 42 (1989)(footnote
omitted), quoting The Restatement of Contracts , Second g 190 comment c (1981).
       Thus , the contingency fee is only allowed if there is no possibility that the fee will
encourage the lawyer to discourage reconciliation.   Id. Restatement of the Law
Governing Lawyers , Third , g 35 , Reporter                                 Krieger 40 Cal.
                                                                           s Notes to Comment g, citing


2d 97 (defendant in divorce suit may contract to pay contingent fee based on property
defendant preserves , since lawyer has no incentive to discourage reconciliation).

             The Restatement of the Law Governing Lawyers , Third , g 35 states:
              ( 1)                contract with a client for a fee the size or payment of
                                            may


             which is contingent on the outcome of a matter            . . payment of the      unless.


             fee is: . . .
               (b)   contingent on a specified result in a divorce proceedingor a
             proceeding concerning custody of a child. "                                (Emphasis added.

        As Williston on Contracts states , a " contingent fee agreement between an attorney
 and client , which has for its purpose the procuring of a divorce , is not valid and will not
 be enforced. " WILLISTON ON                                 ) (footnote omitted , citing
 California and many other jurisdictions)(Westlaw database updated October 2008).
             24                                               , Third , g 35 , Comment g.
hardly requires) lawyers to give advice that is not financially neutral from the lawyer
perspective.
            It is no defense that the contingency fee contract provides that the husband and the
wife have the final say on reconciliation. Of course they do. The statement is both
obvious and irrelevant to the ethical violation.
           The same logic applies here. Courts prohibit the
divorce situation because it creates a financial incentive that interferes with the financial
neutrality a lawyer should have in these cases. The contingency fee may encourage the
lawyer to give the wrong advice to his or her client. That is the same reason that the
Clancy       Court prohibited the contingency fee; it encouraged the lawyer to give the wrong
advice in the public nuisance action even though the contract with Mr. Clancy provided
that the lawyer could only offer advice and not makes the final decision.
            The private lawyer in                 Clancy       (like the private lawyers in the present case) " agrees
that in each and every case , suit or proceeding in which he undertakes to assist the City
Attorney of CITY , as aforesaid , shall be and shall remain under and subject to the control
and direction of said City Attorney or the City Council of CITY at all stages , and that he
shall at all times keep said City Attorney informed of all matters pertaining thereto. . .
   25 That boilerplate language could no more undo the public policy objections in
                                                                                                                            Clancy
than similar boilerplate language could undo the public policy objections in the divorce
case or the present case.
            If the Court overrules                Clancy        and adopts the theory of the             Santa Clara   Court of

Appeal , we should expect to see similar boilerplate language not only in divorce actions
but also in other contracts in order to permit contingent fees. For example , the client may
wish to offer a witness a fee contingent on the outcome of a case , in violation of Rule 5-
310(B) of the California Rules of Professional Conduct. The fee would not be contingent
on the content of


            25                                                                                 , 2008 (RJN), Exhibit A , at pp,.
12- 14 (Agreement for Legal Services , pp. 1- 3).
      We should also expect to see contingent fees for representing a defendant in a
                                                                     26 Under the theory
criminal matter. Now , the law does not allow such contingency fees.
of the Court of Appeal in                      Santa Clara lawyers should be able to charge fees contingent
on securing an acquittal , as long as the contract has boilerplate language certifying that
the client retains ultimate control as to whether to plead guilty or innocent.
II.         TO ALLOW PRIVATE LAWYERS , REPRESENTING THE STATE TO
            PROSECUTE PUBLIC NUISANCE ACTIONS, TO PERSONALLY
            PROFIT FROM CONTINGENCY FEES VIOLATES DUE

            When a government lawyer has a personal interest in the litigation , the financial
neutrality on which the judicial system is predicated is violated.                           Clancy   explained , in the
course of citing constitutional decisions , that not only prosecutors but " other government
attorneys can be disqualified for having an interest in the case extraneous to their official
function. 27 Paying private lawyers a contingency fee not only creates problems with
legal ethics , it creates problems under Constitutional Law because it gives lawyers
representing the Sovereign a personal financial interest that is extraneous to their official
function.
            This Court in             Clancy      understood this basic principle , which helps explain why it
prohibited contingent fees in public nuisance actions. The plaintiff is suing on behalf of
the Sovereign to vindicate public interests , not on behalf of non- governmental interests
(such as when a city sues a plumber for damages caused by faulty repair of a public
washroom).
             Clancy         cited with approval             Tumey    v.   Ohio 273 U. S. 510 (1927), which declared
unconstitutional a system where the mayor of a town served as judge in liquor possession
cases. The punishment was a fine , with the money paid into a fund that the mayor could




             26 A. A. Model Rules of Professional Conduct , Rule 1.5(d)(2); Restatement
 of the Law Governing Lawyers , Third , g35(1)(a);                                       , CALIFORNIA PROCEDURE
 177 , p. 247 (5th ed. 2008).
             27
use to recover his costs for hearing the case. That created an improper financial
incentive.
        Clancy            similarly cited with approval                   Ward            v.   Village of Monroeville 409 U. S. 57

(1972). A state law
forfeitures , costs and fees of the mayor s court provided a substantial portion of the
village funds. This arrangement
judicial officer.

       In the same paragraph/8                            Clancy   cited with approval                 People   v.   Conner 34 Cal. 3d
141 (1983), also involving Santa Clara County. The case held that there was a conflict
interest when a deputy district attorney was a witness to (and arguably a victim of) the
criminal conduct that others in his office were prosecuting.
of the entire county district attorney s office.
       People             v.   Superior Court (Greer),                19 Cal. 3d 255 (1977), disqualified the
prosecutor because a woman working in his office was the mother of the victim and a
material witness. She stood to gain                                                                   s children if the prosecutor
secured conviction of the defendant. The jury decided the facts and the court decided the
law , yet the prosecutor was in a conflict because the situation prevented him from
impartially performing discretionary functions.
        The      Clancy            Court explained the general theme of all of these cases: " When a
government attorney has a personal interest in the litigation , the neutrality so essential to
the system is violated. "                   39 Cal. 3d

        Other cases reflect this same theme. In                                  Ganger          v.   Peyton 379 F. 2d 709 (4th Cir.
1967), the prosecutor who secured a conviction was , at the time of trial , also representing
the defendant' s wife in a divorce proceeding against the defendant. " Such a conflict of
interest clearly denied (defendant) Ganger the possibility of a fair minded exercise of the
prosecutor s discretion.                      Id.   at 712. The court rejected the
must show specific misconduct or prejudice. The Government charged Ganger with a


                      39 Cal. 3d at 746- 47.
                                                                  ,"




serious assault ,          with imprisonment of 20 years. Instead , he was convicted of a lesser
assault and sentenced to only 6 months. Still , there was a constitutional violation: "
think the conduct of this prosecuting attorney in attempting at once to serve two masters
the people of the Commonwealth and the wife of Ganger , violates the requirement of
fundamental fairness assured by the Due Process Clause of the Fourteenth Amendment."
Id.     at 714. So too , in this case , the private law firms are serving two masters , the
Government , and all of their private economic interests.
       And , of course                   Us. ex
                                      , there is     Young   v.             481 U. S. 787
        29 The Justices agreed (using different theories) that it was error for a court to
(1987).
appoint Vuitton s lawyers as special prosecutors in a criminal contempt prosecution of an
injunction that the defendants allegedly violated. The injunction protected Vuitton.
portion of the decision that was an opinion of the Court explicitly held that there is the
      requirement of a disinterested prosecutor" (although this test is "not as stringent" as the
requirement of disinterestedness is in ajudge).                           Id.   at 807.

            What the Court meant was that the "requirement of a disinterested prosecutor
means that the situation should not inject a personal interest, financial or otherwise , into
the enforcement process " because that " may bring irrelevant or impermissible factors into
the prosecutorial decision.                        Vuitton 481 U. S. at 808 (footnote and internal citation
omitted). Similarly, the                                                                                       may
bring about " irrelevant or impermissible factors " that will affect the judgment or actions
of the lawyer acting on behalf of the government , just like a contingency fee may cause
the divorce lawyer to offer tainted advice.
            The Brennan plurality concluded Private attorneys appointed to prosecute a
criminal contempt action represent the United States, not the party that is the beneficiary
 of the court order allegedly violated.                           Vuitton 481 U. S. at 804. Hence , the lower court
 erred in appointing these attorneys who simultaneously represent a private client who

            29                 , 2 Ronald D. Rotunda & John E. Nowak , Treatise on
 Constitutional Law: Substance and Procedure , gg 9. 6(d)(i), 9. 6(e)(v), 17. 8(g) (Thomson-
 West , 4th ed. 2008).
stands to profit from the prosecution. "                       The prosecutor is appointed                 solely to pursue the
public interest             in vindication of the court' s authority.                        Id.   (emphasis added). That was
not true in            Vuitton and it is not true here. A major purpose of a contingency fee is to
motivate the lawyer , but the government attorney should be appointed solely to pursue
the public interest , not his private interest.
advice that the lawyer gives. The fact that the City Attorney
cure that defect.
              Justice Blackmun , concurring, was more direct , saying that " the practice-- federal
or state--of appointing an interested party s counsel to prosecute for criminal contempt is
a violation of due process. This constitutional concept, in my view , requires a
disinterested prosecutor with the unique responsibility to serve the public , rather than a
private client , and to seek justice that is unfettered.                               Vuitton 481 U. S. at 815.
              Aetna Life Insurance Co.               v.    Lavoie 475 U. S. 813 (198'6), held that a judge
not participate in drafting and issuing a legal opinion that affected the value (or "raised
the stakes ) in his own private lawsuit. That violates due process , because of the judge
conflicting financial interest.
              Now , let us rethink all of these cases under the inventive theory of the Court of
Appeal. The Mayor s Court can collect fees that add to its budget.
violate        Tumey        or   Ward     (according to the Court of Appeal' s theory) if the defendant who
was fined could have a trial                  de novo.        Then , there would be no risk of an ethical or
 constitutional violation because the trial                      de novo       would provide the appropriate
 supervision. Or , instead of a trial                     de novo we could have the Mayor s Court operate with

 ajury. Then , we should not be worried that the Mayor would benefit from levying fees
because a jury would decide the facts , and the appellate court would decide the law. That

              30 " The prime directive is not to convict but to seek justice. . . . That is why,
 for example , prosecutors may not be paid continent fees (with the fee contingent on
 securing conviction). " RONALD D.                                       , LEGAL ETHICS:
 THE LAWYER S DESKBOOK ON PROFESSIONAL RESPONSIBILITY g 1. 7-6(                                                 d)(2), at p.

  Conflicts When Private Attorneys Have Criminal Prosecution Powers ) (ABA &
 Thomson- West , 2008-2009 ed.
                      ,"




would provide the necessary " supervision" to avoid the problems that have worried the
judges in a host of cases            , like    Clancy    and   Tumey.
       We could also avoid the problems of                      People   v.   Superior Court (Greer),    where the
Court disqualified the prosecutor because a woman working in his office was the mother
of the victim and a material witness. We keep the prosecutor on the case and simply tell a
second prosecutor to supervise the first one.
       In   Lavoie there should be no problem when a judge drafts and issues a legal
opinion that affects the value of his own private lawsuit as long as the other judges know
his view; then , they can provide the necessary " supervision" to make sure that he does
not allow his personal financial interest to affect his judgment.
       In   Vuitton there should be no problem if the lawyer for the beneficiary of the
court order prosecutes violations of that court order, because the judge (who appointed
the lawyer in the first place) is available to supervise the lawyer.
        The Court of Appeal acknowledged several times that the prosecuting lawyers in
this case must have " absolute neutrality. " 31 But then it says , because the City Attorney is
really in charge absolute neutrality is not required of private counsel here. 32 If that
were really true , the City Attorneys should be able to pay their assistant City Attorneys a
contingent fee because the City Attorney will " supervise. "                          That surely cannot be

ethically or constitutionally, nor would it be sound judicial
       We know that in none of these cases should the theoretical ability of supervision
be enough to avoid the ethical and constitutional problem. As the Court explained in
Vuitton     Appointment of an interested prosecutor is also an error whose effects are
pervasive. "    A prosecution (indeed ,                 any lawsuit) " contains a myriad of occasions for the
exercise of discretion , each of which goes to shape the record in a case , but few of which
are part of the record.              Vuitton 481 U. S. 787.




                       g, Santa Clara              74 Cal. Rptr. 3d at 848.

                   Santa Clara               74 Cal. Rptr. 3d at 852.
          That Court added If a prosecutor uses the expansive prosecutorial powers to
gather information for private purposes , the prosecution function has been seriously
abused even if, in the process , sufficient evidence is obtained to convict a defendant."
Vuitton 481 U. S. at 811. That also is true here.
          The prosecutors                   the private lawyers paid a contingency fee           will act

differently because they are paid by a contingency fee. The contingency fee motivates
the private lawyer to win big at all costs. That incentive is
public lawyers prosecuting public nuisance actions. Surely the Government cannot be
arguing that a contingency fee does not affect the judgment of the contingency fee
lawyers; if that were true                 Clancy       would have come out the other way.
                                                             CONCLUSION
          Trial judges , like the trial judge in this case , know that there is no effective way
the trial court can supervise the contingency fee lawyers to make sure that they are not
motivated by the golden ring of a large contingency fee. The invocation
Client and Work Product Privileges will forever shield scrutiny. The Court
                                                                                            33
agrees that the prosecuting attorneys must have " absolute neutrality,
approves of a contingency fee , which is completely inconsistent with " absolute
neutrality.        We should not sacrifice ethics on the altar of budgetary exigencies.
           What we do know for sure is that the Government is not like an impecunious and
injured plaintiff who has no access to court but for the contingency fee.
case , a primary purpose of giving
differently than they otherwise would , because of their personal interest. But lawyers
who are representing the Sovereign are not supposed to act for their personal financial
benefit.
          This Court decided                Clancy       correctly and in line with centuries of sound principles
of ethics , jurisprudence , and constitutional law. Those principles have not changed since
Clancy.      This Court should not permit the Court of Appeal to reinterpret                     Clancy     to allow


                     E.g., Santa Clara                74 Cal. Rptr. 3d at 848.
contingent fee lawyers to prosecute public interest cases like the present one.
because the duty of every lawyer paid by a contingent fee (to collect as much as possible
from the defendant) is inconsistent with the duty of every Government lawyer to see that
the public interest is
seek justice. The leitmotif of the law of ethics and Constitutional Law is that the
Sovereign wins whenever justice is done. " When a government attorney has a personal
interest in the litigation , the neutrality so essential to the system is violated.   Clancy,



Cal. 3d at 746.


Respectfull y submitted


Dated: Apri127 2009                RONALD D. ROTUNDA

                                   AKIN GUMP STRAUSS HAUER
                                   & FELD LLP




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                                       AKIN GUMP STRAUSS HAUER
                                       & FELD LLP




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              practice of collectIon and processing correspondence for mailing.
              On the same day that correspondence is placed for collection and
              mailing, it is deposited in the ordinary course of business with the
              United States Postal Service , in a sealed envelope with postage fully
              prepaid at Los Angeles , California.

t8J            I declare under penalty ofpeIjury under the laws of the State
of California that the foregoing is true and correct.
D (FEDERAL)        I declare that I am employed in the office of a member of
the bar of this court at whose direction the service was made.
              Executed on April 27 , 2009 at Los Angeles


Yvonne Shawver
IPrint Name of Person Executing Proof)
                               SERVICE LIST
PaulPohl* (Pa. BarNo. 21625)                   John W. Edwards. (Cal. BarNo. 213103)
Charles H. Moellenberg, Jr.                    JONES DAY
54740)                                         1755 Embarcadero Road
Leon F. DeJulius , Jr. * (Pa. Bar No. 90383)   Palo Alto , CA 94303
JONES DAY                                      Telephone: (650) 739. 3939
500 Grant Street , Suite 3100                  Facsimile: (650) 739.3900
Pittsburgh , PA 15219- 2502                    E-mail: jwedwards(illjonesday. com
Telephone: (412) 391- 3939
Facsimile: (412) 394- 7959                     Brian J. O' Neill (Cal. Bar No. 038650)
E-mail: chmoellenberg(illjonesday. com         JONES DAY
pmpohl(illj onesday. com                       555 South Flower Street , 50th Fl.
Ifdejulius(illj onesday. com                   Los Angeles , CA 90071
Counsel for Appellant                          Telephone: (213) 489- 3939
THE SHERWIN- WILLIAMS COMPANY                  Facsimile: (213) 243- 2539
                                               E-mail: boneill(illjonesday. com
Dennis J. Herrera                              Michael J. Aquirre
City Attorney                                  City Attorney
Owen J. Clements                               Sim von Kalinowski
Chief of Special Litigation                    Chief Deputy City Attorney
Erin Bernstein                                 OFFICE OF THE SAN DIEGO CITY
Deputy City Attorney                           ATTORNEY
SAN FRANCISCO CITY ATTORNEY                    CITY OF SAN DIEGO
F ox Plaza                                     1200 Third Avenue #1620
1390 Market Street , Sixth Floor               San Diego , CA
San Francisco , CA 94102                       Tel: (619) 533- 5803
Tel: (415) 554- 3800
                                               Dennis Bunting
Richard E. Winnie                              County Counsel
County Counsel                                 Solano County Courthouse
Linda L. Nusser                                675 Texas Street , Suite 6600
Deputy County Counsel                          Fairfield , CA 94533
ALAMEDA COUNTY OFFICE OF THE                   Tel: (707) 784- 6140
COUNTY COUNSEL
1221 Oak Street , Suite 450                    Raymond G. Fortner Jr.
Oakland , CA 94612                             County Counsel
Tel: (510) 272- 6700                           Donovan M. Main
                                               Robert E. Ragland
Thomas F. Casey III                            Deputy County Counsel
County Counsel                                 LOS ANGELES COUNTY COUNSEL
Brenda Carlson , Deputy                        500 West Temple St. , Suite 648
Rebecca M. Archer, Deputy                      Los Angeles , CA 90012
COUNTY OF SAN MATEO                  Tel: (213) 974- 1811
400 County Center , Sixth Floor
Redwood City, CA 94603               John A. Russo
Tel: (650) 363- 4760                 Christopher Kee
                                     OAKLAND CITY ATTORNEY
Jeffrey B. Issacs                    One Frank H. Ogawa Plaza , 6th Floor
Patricia Bilgin                      Oakland , CA 94612
Elise Ruden                          Tel: (510) 238- 3601
OFFICE OF THE CITY ATTORNEY
CITY OF LOS ANGELES
500 City Hall East
Los Angeles , CA 90012
Tel: (213) 978- 8097


Frank M. Pitre                       Michael P. Thornton
Nancy 1. Fineman                     Neil T. Leifer
Ara J abagchourian                   THORNTON & NAUMES
Douglas Y. Park                      100 Summer Street , 30th floor
COTCHETT , PITRE & McCARTHY          Boston , MA 02110
840 Malcolm Road , Suite 200         Tel: (617)720- 1333
Burlingame , CA 94010
Tel: (650)697- 6000                  Mary Alexander
                                     Jennifer L. Fiore
Charles H. McKee                     MARY ALEXANDER & ASSOC.
County Counsel                       44 Montgomery Street , Suite 1303
William M. Litt                      San Francisco , CA 94104
Deputy County Counsel                Tel: (415) 433- 4440
OFFICE OF THE COUNTY COUNSEL         ATTORNEYS FOR PLAINTIFFS
COUNTY OF MONTEREY
168 West Alisal Street , 3rd Floor   Peter A. Strotz
Salinas , CA                         Daniel 1. Nichols
Tel: (831) 755- 5045                 FELICE BROWN EASSA & McLEOD
                                     Lake Merritt Plaza
Fidelma Fitzpatrick                  1999 Harrison Street , 18th Floor
Aileen Sprague                       Oakland , CA
MOTLEY RICE                          Tel: (510) 444- 3131
321 South Main Street
Providence , RI 02940
Tel: (401) 457- 7700

Michael T. Nilan                     Richard W. Mark
HALLELAND LEWIS NILAN &              Elyse D. Echtman
JOHNSON                              ORRICK , HERRINGTON & SUTCLIFF
600 U. S. Bank Plaza South             666 Fifth Avenue
222 South Sixth Street                 New York, NY
Minneapolis , MN 55402- 4501           Tel: (212) 506- 5000
Tel: (612) 338- 1838                   ATTORNEYS FOR DEFENDANT
                                       AMERICAN CYANAMID COMPANY
James C. Hyde
ROPERS , MAJESKI , KOHN &              Steven R. Williams
BENTLEY                                Collin 1. Hite
80 North 1                             McGUIRE WOODS
San Jose ,   CA                        One James Center
Tel: (408) 287- 6262                   90 I East Cary Street
ATTORNEYS FOR DEFENDANT                Richmond , VA 23219
MILLENNIUM INORGANIC                   Tel: (804) 775- 1000
CHEMICALS , INC.                       ATTORNEYS FOR DEFENDANT E.
                                       DuPONT DE NEMOURS AND
James H. McManis                       COMPANY
William W. Faulkner
Matthew Schecter                       Sean Morris
McMANIS , FAULKNER & MORGAN            Shane W. Tseng
50 W. San Fernando St. , 10th Floor    John R. Lawless
San Jose ,   CA                        Kristen L. Roberts
Tel: (408) 279- 8700                   ARNOLD & PORTER
                                       777 South Figueroa St. , 44th Floor
Timothy S. Hardy                       Los Angeles , CA 90017
837 Sherman , 2nd                      Tel: (213) 243- 4000
Denver , CO
Tel: (303) 733- 2174                   Philip H. Curtis
                                       William H. V oth
Donald T. Scott                        ARNOLD & PORTER
BARTLIT , BECK , HERMAN                399 Park Avenue
 ALENCHAR & SCOTT                      New York , NY
1899 Wynkoop Street , Suite 800        Tel: (212) 715- 1000
Denver , CO                            ATTORNEYS FOR DEFENDANT
Tel: (303) 592- 3100                   ATLANTIC RICHFIELD COMPANY
ATTORNEY FOR DEFENDANT NL
INDUSTRIES, INC.

Allen 1. Rudy
Glen W. Schofield                      Clerk of the Court
RUDY & SCHOFIELD                       Santa Clara Superior Court
125 South Market Street , Suite 1001   Old Courthouse
San Jose , CA                          161 North First Street
Tel: (408) 998- 8503                   San Jose , CA 95113
Clement L. Glynn                 Edmund G. Brown Jr.
Patricia L. Bonheyo              California Attorney General
GLYNN & FINLEY                   1300 I. Street
100 Pringle Avenue , Suite 500   Sacramento , CA 94244
Walnut Creek , CA 94596          Clerk of the Court
Tel: (925) 210- 2800             Sixth District Court of Appeal
                                 333 W. Santa Clara Street , Suite 1060
Lawrence A. Wengel               San Jose , CA 95113
Bradley W. Kragel                OTHER COURTS AND ENTITIES
GREVE , CLIFFORD , WENGEL &
PARAS
2870 Gateway Oaks Drive
Suite 210
Sacramento , CA 95833
Tel: (916) 443- 2011

James P. Fitzgerald
McGRATH , NORTH , MULLIN &
KRATZ
1601 Dodge Street , Suite 3700
Omaha , NE 68102
Tel: (402) 341- 3070
ATTORNEYS FOR DEFENDANT
CONAGRA GROCERY PRODUCTS
COMPANY

				
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