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One of America’s most important legal principles is prosecutorial neutrality. Rooted in the constitutional guarantee of due process, this principle means that citizens have the right to expect that any legal action taken against them by a government actor is motivated by the public good, not personal profit. This commitment to disinterested decision making is reflected in the way we compensate law enforcement officers. We do not pay police officers a bounty for each arrest, or prosecutors a per-conviction stipend, or judges a percentage of damages they award. Similarly, the statutes and ethical codes covering government lawyers prohibit them from accepting any payment, other than their salaries, for doing their jobs. But, increasingly, we are witnessing a phenomenon that threatens this neutrality. Public officials who would never think of using their offices for personal benefit are delegating power to private lawyers who stand to enrich themselves from the prosecution of public claims. Outside attorneys hired to do the government’s business are being paid with a percentage of any judgment or settlement they win. In a prominent case in Rhode Island, private counsel retained by the state attorney general on a contingent-fee basis have been instrumental in devising and pursuing an unprecedented public nuisance claim against former manufacturers of lead pigment used in house paint. Contingent-fee arrangements also have helped drive public nuisance claims against former lead paint manufacturers in St. Louis and Milwaukee. In Texas, a solicitation letter from a private law firm to school districts enticed potential plaintiffs with the assurance that “the district has nothing to lose.” Similarly, some plaintiffs attorneys are now seeking state governments to hire them to file suit to collect damages from corporations that allegedly contribute to global warming. This delegation of state power to financially self-interested counsel is troubling. Such arrangements encourage private attorneys to manufacture dubious legal theories, construct remedies that may be antithetical to the public good, and seek outsized settlements in order to maximize their income. These arrangements can distort government decision making and lead to bad policy outcomes. Although I have clients that are targets of the Rhode Island lead pigment litigation, my views are rooted in my experience as a state attorney general. They also reflect the findings of the courts, legal codes of professional conduct, and the misgivings of other public officials, past and present. ‘TO GOVERN IMPARTIALLY’ The U.S. Supreme Court observed in Berger v. United States (1935) that government attorneys represent “a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice should be done.” Fifty years later, in People ex rel. Clancy v. Superior Court (1985), the California Supreme Court applied this duty of impartiality not only to criminal matters but also to cases in which the government is pursuing a sovereign interest, such as eminent domain actions. In Clancy, the city of Corona had retained a private attorney, James Clancy, to pursue a public nuisance suit involving the sale of sexually explicit materials. The California court wrote, “Any financial arrangement that would tempt the government attorney to tip the scale cannot be tolerated.” It rejected Clancy’s attempt to evade the neutrality obligation by arguing that he was not a government employee: “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.” A contingent-fee arrangement was “antithetical to the standard of neutrality.” DISTORTING DECISIONS The risk is that contingent-fee arrangements will interfere with just decision-making about whether to file suit, what legal theory to pursue, whether to settle or drop a suit, and what remedy to propose. Public decision-makers should consider a number of threshold questions before filing a suit: Has a wrong been committed against the citizens and by whom? Is litigation the best response or are there swifter, more effective, less costly options? Are the state’s legal theories and evidence strong enough to win at trial? Are the state’s arguments consistent with public policy? Is there a fair and effective remedy? But proponents of contingent-fee arrangements relegate many of these questions to the periphery. They contend that these arrangements provide the state with additional resources at little or no cost. Indeed, they argue, if money is no object, and there are no other costs to the taxpayers, why shouldn’t the government pursue marginal claims, particularly when budgets are tight and coffers low? Well, for several very good reasons: • There are no “free” cases. Litigation always requires the expenditure of government resources on oversight and in discovery and other activities. • Litigation may not serve the public interest. • It is wrong to pursue baseless claims on the chance that one will strike it rich with a particular judge or jury or force a defendant into settlement. • Citizens have a right to expect that the state’s power will never be used in ways that place money before justice. THE RHODE ISLAND CASE The potential distortions are not theoretical. Rhode Island offers a case study in the problems that arise when private attorneys with a vested interest in the outcome are allowed to drive decision making. In October 1999, contingent-fee lawyers retained by the Rhode Island attorney general filed a lawsuit claiming that former lead pigment manufacturers or their alleged successors — the list of defendants includes American Cyanamid, Atlantic Richfield, ConAgra Grocery Products, Cytec Industries, DuPont, Millennium Inorganic Chemicals, NL Industries, and Sherwin-Williams — had created a public nuisance by producing lead pigment used in lead-based house paint decades ago. The suit further alleges that the mere presence today of lead-based paints in Rhode Island homes, offices, churches, schools, hospitals, and other buildings built before 1978 is a public nuisance created by these companies. After almost four years, the litigation is far from conclusion. A “phase one” trial to determine whether the presence of lead paint constituted a public nuisance ended in a mistrial last October, when the jury voted 4-2 to reject the plaintiffs’ theory. The suit illustrates some of the distortions driven by contingent-fee arrangements. The core claim — that lead paint should be removed from every building in the state — directly conflicts with the judgment of Rhode Island’s legislature and its Department of Health, both of which have determined that well-maintained lead paint is not a hazard and that proper maintenance is the best way to protect children. In fact, the Rhode Island lawsuit could actually create health hazards by forcing the removal of safely maintained lead-based house paint. According to the U.S. Centers for Disease Control, the dust from removal projects can turn a safe environment into a hazardous one unless proper procedures are followed. But requiring the removal of all lead paint would dramatically increase the number of dollars awarded, thereby increasing the potential payout to the contingent-fee attorneys. Thus, private counsel have economic incentives to urge remedies that conflict with established policy and run counter to the interest of the state’s citizens. Moreover, businesses in Rhode Island believe the lawsuit threatens the state’s economic well-being. They have warned that if all buildings in Rhode Island with lead paint are declared public nuisances, insurance companies may raise rates significantly or stop writing certain policies, property values may plummet, mortgages may become unavailable, and innocent property owners may be pursued for maintaining a public nuisance. BEWARE OF ‘NO-COST’ SUITS If the risks of these contingent-fee arrangements are clear, so too are the solutions. As a first step, the California court’s ruling in Clancy should be the law at every level of our legal system. Contingent-fee arrangements between private counsel and government entities should simply not be allowed in cases, both civil and criminal, in which the state is asserting its police powers. Even when police powers are not involved, government legal officers should be generally wary of such arrangements. Clancy says that contingent fees may be permissible when government acts as a private litigant — for example, in protecting its mineral rights. But the fact that it may be legally permissible does not make it wise. Even in such proprietary cases, the financial interest created by the promise of contingent fees could lead to temptations that are best avoided. In Iowa, where I was attorney general, we resolved the issue quite simply. When it was necessary to retain private counsel, we paid an hourly fee. Furthermore, the decision to retain outside legal assistance required approval from an executive council that included the governor and other senior elected officials. Thus, ultimate decision-making power remained with public officials and was not clouded by the desire for personal financial gain. There are times when private attorneys can help advance the public interest, but they must always be the servant of the public, not the master. When a state decides to litigate, there must be no doubt that prosecutorial neutrality prevails. Bonnie J. Campbell, a lawyer in private practice in Des Moines, Iowa, was attorney general of Iowa from 1991 to 1995. From 1995 to 2001, she served as director of the Justice Department’s Violence Against Women Office. Campbell advises several defendants in the Rhode Island and other lead pigment cases.

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