Supreme Court of California

In a public nuisance action brought by a group of public entities against numerous businesses that manufactured lead paint, the Court of Appeals' holding that People ex rel. Clancy v. Superior Court (1985) 39 Cal.3d 740, does not bar all contingent fee agreements with private counsel in public nuisance abatement actions, but only those in which private attorneys appear in place of, rather than with and under the supervision of, government attorneys is reversed where: 1) the absolute prohibition on contingent-fee arrangements imported in Clancy from the context of criminal proceedings is unwarranted in the circumstances of the present civil public nuisance action; 2) to ensure that public attorneys exercise real rather than illusory control over contingent fee counsel, retainer agreements providing for contingent fee retention should encompass more than boilerplate language regarding "control" or "supervision" by identifying certain critical matters regarding litigation that contingent fee counsel must present to government attorneys for decision such as: (i) that the public entity attorneys will retain complete control over the course and conduct of the case; (ii) that government attorneys retain a veto power over any decisions made by outside counsel; and (iii) that a government attorney with supervisory authority must be personally involved in overseeing the litigation; and 3) here, none of the ten fee agreements contain the other specific provisions regarding retention of control and division of responsibility that are required to safeguard against abuse of judicial process.

Appellate Information

• Decided 07/26/2010
• Published 07/26/2010

Judges

• GEORGE, C. J.

Court

• Supreme Court of California

Counsel

• For Appellant:
  
• Ann Miller Ravel, Sanford Jay Rosen