IN THE SUPREME COURT
OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA , et aI.
THE SUPERIOR COURT OF SANTA CLARA COUNTY
ATLANTIC RICHFIELD COMPANY , et aI.
Defendants/Real Parties in Interest.
AFTER A DECISION , SIXTH ApPELLATE DISTRICT
FROM THE SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF
SANTA CLARA , HONORABLE JACK KOMAR SUPERIOR COURT CASE
BRIEF IN SUPPORT OF THE
BRIEFS OF REAL PARTIES IN INTEREST
RONALD D. ROTUNDA * AKIN GUMP STRAUSS HAUER &
DISTINGUISHED PROFESSOR OF
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
ORGANIZATION OF AFRICAN AMERICANS IN HOUSING
TABLE OF CONTENTS
DESCRIPTION AND INTEREST OF AMICUS CURIAE
SUMMARY OF 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 .......................................................
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
In All Relevant Respects From The Fee
Agreements In Santa Clara................................................
Their Public Positions To Favor The Financial
Interests Of Private Lawyers ................................................ .11
Are Supervising The Private Lawyers Or Complying
With The Contingent Fee Agreement Because Of the
Attorney Client And Work Product Privileges ......................
E. The ' Fees Contingent
On Securing A Divorce Demonstrates That The
Holding Of The Court Is Contrary To The
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 ...............
TABLE OF AUTHORITIES
County of Santa Clara v. Atlantic Richfield Co.
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
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) .....................................................................
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
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
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
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
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
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?
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
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
History reinforces what our common sense already knows:
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
(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
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
39 Cal. 3d at 746 (emphasis added , citation omitted , citing ABA
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.
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
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.
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-
469- 7 n. 50 (R. I. 2008). Preserving the
the private lawyers responsible for litigation costs owed by the State to defendants.
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
limitation that the Court of Appeal created in Santa Clara:
Silverman Ehrlich Beer Corp. 687 F. Supp. 67 , 69- 70 (S.
(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),
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
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),
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
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
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
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
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
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
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.
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.
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
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
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
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
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
action? Is that a decision , or was it influenced by
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
The Government lawyers claim that the present situation is completely different
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
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
The Court of Appeal bought that argument , but the facts do not , and cannot
Whenever a public entity hires outside counsel , the public entity is also
represented by its in- house counsel. That is always true.
. 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
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
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
In short , contingency fee contracts divert large sums from the public treasury into private
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
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
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-
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
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
E.g.. ABA Model Rules on Professional Conduct , Rule 1. Krieger
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
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
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
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
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
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
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).
use to recover his costs for hearing the case. That created an improper financial
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
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
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.
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
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
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
Oi/kIeRex S. Heinke
ATTORNEYS FOR AMICUS
CURIAE , NATIONAL
ORGANIZATION OF AFRICAN
AMERICANS IN HOUSING
CERTIFICATE OF COMPLIANCE
(Cal. Rules of Court , rule 8. 204(c))
This brief consists of 8 807 words as counted by the Microsoft Word version 2002
word processing program used to generate the brief.
Dated: April 27 , 2009 RONALD D. ROTUNDA
AKIN GUMP STRAUSS HAUER
& FELD LLP
NEW AVALON , INC.
PROOF OF SERVICE
STATE OF CALIFORNIA , COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles , State of California. I
am over the age of 18 and not a party to the within action; my business
address is: 2029 Century Park East , Suite 2400 , Los Angeles , CA 90067.
OnApri127 , 2009 BRIEF
, I served the foregoing document described as:
AMICUS CURIAE IN SUPPORT OF THE BRIEFS OF REAL
PARTIES IN INTEREST on the interested parties below, using the
SEE ATTACHED SERVICE LIST
t8J BY I enclosed the document in a sealed
envelope or package addressed to the respective addresses of the parties
stated above and
D deposited the sealed envelope(s) with the United States Postal
Service , with the postage fully prepaid.
ordinary business practices. I am readily familiar with the firm
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
IPrint Name of Person Executing Proof)
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
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County Counsel Solano County Courthouse
Linda L. Nusser 675 Texas Street , Suite 6600
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ALAMEDA COUNTY OFFICE OF THE Tel: (707) 784- 6140
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Tel: (510) 272- 6700 Donovan M. Main
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County Counsel LOS ANGELES COUNTY COUNSEL
Brenda Carlson , Deputy 500 West Temple St. , Suite 648
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OAKLAND CITY ATTORNEY
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Elise Ruden Tel: (510) 238- 3601
OFFICE OF THE CITY ATTORNEY
CITY OF LOS ANGELES
500 City Hall East
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Tel: (213) 978- 8097
Frank M. Pitre Michael P. Thornton
Nancy 1. Fineman Neil T. Leifer
Ara J abagchourian THORNTON & NAUMES
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Tel: (650)697- 6000 Mary Alexander
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County Counsel 44 Montgomery Street , Suite 1303
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Deputy County Counsel Tel: (415) 433- 4440
OFFICE OF THE COUNTY COUNSEL ATTORNEYS FOR PLAINTIFFS
COUNTY OF MONTEREY
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Tel: (831) 755- 5045 FELICE BROWN EASSA & McLEOD
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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
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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
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Tel: (408) 279- 8700 ARNOLD & PORTER
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Tel: (303) 733- 2174 Philip H. Curtis
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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
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 &
2870 Gateway Oaks Drive
Sacramento , CA 95833
Tel: (916) 443- 2011
James P. Fitzgerald
McGRATH , NORTH , MULLIN &
1601 Dodge Street , Suite 3700
Omaha , NE 68102
Tel: (402) 341- 3070
ATTORNEYS FOR DEFENDANT
CONAGRA GROCERY PRODUCTS