Just Don’t Do it: Public Prosecutors Should Avoid Partnering with Plaintiffs’ Attorneys

Kim Stone
President of the Civil Justice Association of California

Public prosecutors are entrusted with a unique and powerful responsibility. They are given the authority to protect the public interest while maintaining a neutral, impartial commitment to ensuring that justice be done. That is the motivating factor that drives their actions – that justice be done – whether that consists of large financial awards or not.

It is with this concept in mind that the Civil Justice Association of California (CJAC) takes strong interest in agreements made between public prosecutors and private, for-profit plaintiffs’ attorneys to prosecute cases. Most recently, our attention has turned to the agreement made last year between the Orange County district attorney’s office and the private Newport Beach plaintiffs’ attorney firm of Robinson, Calcagnie & Robinson, as well as a new agreement with plaintiffs’ attorney Tom Girardi, to prosecute unintended acceleration claims against Toyota Motor Corp.

We were startled when the Orange County district attorney’s office refused last year to release the terms of the contract with the Robinson firm after the Orange County Register submitted a public records request. Specifically, they would not share what or how the firm would be paid.

This raised a number of questions. What were they trying to hide? Did the agreement fully comply with state case law on this subject? Why did they believe the public was not entitled to know how its tax dollars were being spent in a case that was supposed to be about protecting the public?

This past August, CJAC submitted a letter to the Orange County district attorney’s office explaining why their reasons for keeping the Robinson contract private were not valid. Within 24 hours, the contract was released (the Girardi contract has not yet been released).

It appears that the Robinson agreement complies with the most recent case law. In last year’s state Supreme Court decision in County of Santa Clara v. Superior Court, the Court ruled that public prosecutors could hire contingency fee plaintiffs’ attorneys to prosecute public nuisance cases as long as the public prosecutor retained control of the case.

However, we maintain our position that these types of agreements are inappropriate.

Private, for-profit plaintiffs’ attorneys are motivated by financial interests. Their goal in prosecuting a business for wrongdoing is to maximize the amount that the business pays. The more the business pays, the more the attorneys get paid.

However, a public prosecutor, because his or her responsibility is only to ensure that justice is done, might be more inclined to use a variety of tools. For example, a prosecutor might compel a business to change certain practices even if that meant that the company would pay less in a settlement. Prosecutorial ethics impose strict requirements upon public prosecutors; for-profit plaintiffs’ attorneys may not have that same sense of justice.

Even if the agreement doesn’t grant a specific percentage of the award to the attorneys if they win (the Robinson agreement initially did; it was later removed), the financial incentive is still there because the attorney is paid only if he or she wins.

The state Supreme Court got it right in People rel. Clancy v. Superior Court (1985), which prohibited public entities from hiring contingency fee plaintiffs’ attorneys on behalf of the public.

The Clancy decision, authored by the late Supreme Court Justice Stanley Mosk, explained how public prosecutors are a different type of lawyer than for-profit plaintiffs’ attorneys. He stated that a public prosecutor “must act with the impartiality required of those who govern…he has the vast power of the government available to him; he must refrain from abusing that power by failing to act evenhandedly.”

He added that when an attorney, “has a personal interest in the litigation, the neutrality so essential to the system is violated.”

Thus, CJAC encourages other public prosecutors to refrain from these types of agreements to avoid venturing into dangerous, murky territory. If they choose to pursue one, we certainly hope they will be more transparent about it from the outset than the Orange County district attorney’s office was.  Members of the public deserve to know how their tax dollars, and what amount, are going to be used to “protect” them.

 

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