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Plaintiff lawyers have figured out a way to get past Proposition 64, the November measure that stops them from acting as private attorneys general. The only thing standing in their way is the public attorney general. In recent weeks, some of California’s biggest plaintiff firms have initiated talks with Attorney General Bill Lockyer’s office and local DAs to see if Lockyer would be willing to deputize or contract with them. Doing so would allow plaintiff lawyers to handle suits that, under Prop 64, can only be brought by the attorney general. “We’re having different discussions with different attorneys general, different district attorneys and such, about partnering in cases with us,” said Reed Kathrein, a partner at Lerach Coughlin Stoia Geller Rudman & Robbins. “We’re in rooms together, we’re dancing, but we haven’t picked partners.” Kathrein said he first mentioned the idea to Lockyer when they met in person shortly after the election. At the time, the AG seemed open to the idea of partnering with plaintiff attorneys. But the attorney general has since decided that he’ll remain a wallflower. “We have heard rumblings about the possibility of deputizing private attorneys, and our position is that it’s highly, highly unlikely that the attorney general would sanction that practice,” said Lockyer spokesman Tom Dresslar. “It would have to be an extraordinary circumstance.” The attorney general has contracted with outside attorneys in other matters, generally complex or out-of-state litigation such as the 2001 suits against Microsoft, said Dresslar. But most cases under Business & Profession Code � 17200, the state’s unfair competition law, don’t fit that description, he added. Nonetheless, several plaintiff attorneys insist they are the best solution for the attorney general, who is struggling to find the resources to bring cases formerly handled by the private sector. The AG’s need for help to handle the new caseload was highlighted by a Jan. 29 tentative ruling from Alameda County Superior Court Judge Ronald Sabraw. In an opinion that found that Prop 64′s restrictions apply to cases filed before its passage, Sabraw invited Lockyer and Alameda County District Attorney Thomas Orloff to submit briefs on how to prosecute 17200 claims in which the plaintiff has lost standing but the government might be interested in taking up the case. “To ensure that the general public can continue to prosecute legitimate claims, the court will permit the attorney general or any other public entity to intervene and continue the prosecution of UCL claims in the interest of the general public,” wrote Sabraw. Sabraw’s ruling in Foundation Aiding the Elderly v. Covenant Care, Inc., RG03-087211, has since been trumped by a First District Court of Appeal opinion that held that Prop 64 does not apply retroactively, and Dresslar said Lockyer has decided not to submit briefs to Sabraw. Meanwhile, the attorney general’s office is moving forward to start taking on more 17200 claims, said Dresslar. Last month Lockyer requested a $2.3 million loan from the state budget to hire additional lawyers. He plans to use contingency fees from 17200 victories to repay the loan by 2007, Dresslar said. “That might be enough for one or two cases,” countered Kathrein. Other plaintiff lawyers are also skeptical of the plan. “The public prosecutors are not going to be able to bring all the cases that should be brought,” said James Sturdevant, a plaintiff lawyer who was president of the Consumer Attorneys of California last year when Prop 64 passed. Plaintiff lawyers also question the wisdom of using public funds to finance such suits. “There’s a reason they call them contingency fees: You can’t count on them. They’re not always easy to get. You can’t budget on them,” said Elizabeth Cabraser, a partner with Lieff Cabraser Heimann & Bernstein. Cabraser, who in the mid-1990s was deputized as a private attorney general in Massachusetts to sue tobacco companies, said she was not aware of an effort to persuade Lockyer to do the same. But she said such a strategy could benefit the state. “They could deputize outside counsel on a contingency basis. � If the suits aren’t successful, the state doesn’t lose money on them,” she said. But for now, Lockyer’s inclined to go it alone. “It’s not a good idea having private lawyers running around with a badge,” Dresslar said.

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