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Plaintiff lawyers seeking public partners won’t get much help from the state’s DAs. But city attorneys remain open to offers. The plaintiff bar has been looking to team up with public prosecutors since the November passage of Proposition 64 limited private attorney general suits. With Attorney General Bill Lockyer tepid to the idea of collaborating, the private lawyers have narrowed their focus to city attorneys and DAs. Reed Kathrein, a partner with Lerach Coughlin Stoia Geller Rudman & Robbins, said that he’s spoken with some district and city attorneys about teaming up, but would not go into details, including their responses. Owen Clements, a deputy city attorney in San Francisco, said “three or four firms” have approached him since November. “I don’t want to talk about specific people who have floated ideas to us, but people have floated ideas to us, and we’ll consider them on a case-by-case basis,” he said. Kathrein and other plaintiff attorneys say such arrangements would be mutually beneficial. They say the public offices could take on more suits — and presumably collect more penalties — if private lawyers did much of the work. They point out that a lesser-known portion of Prop 64 gives local offices prosecuting unfair business competition claims a share of any resulting civil penalties. “I don’t know if that’s a blessing or a disease,” said Gale Filter, a deputy director of the California District Attorneys Association who deals with consumer issues. He said DAs don’t want the same PR problems that plague plaintiff attorneys. “You can certainly see what would happen if you brought in private partners to do 17200 litigation. It could look like a way to generate revenue,” Filter said. More problematic, said several DAs, is the prospect of ceding public power — “handing over the badge,” as several put it. “If someone were to ask me, I’d be against partnering,” said Patricia Pummill, a San Diego deputy district attorney. Pummill is one of several consumer protection specialists who have been swapping e-mails in recent weeks warning of the dangers of working with private attorneys. Other DAs echoed her concerns. “I would think it’s a bad idea personally. Prosecutors themselves have an ethical standard to take into consideration. We don’t take our cases on contingency,” said Michael Yraceburn, a Kern County deputy DA. “We’re there to level the playing field, to make sure businesses that are bad actors are not taking advantage of good businesses. I don’t know that the private attorneys have the same priorities,” Yraceburn added. Local district attorney offices were less than enthusiastic, too. “Why would anyone do that?” said Paula Kuty, chief assistant district attorney in Santa Clara County. “If the purpose of the 17200 [statute] is to remedy a public wrong, then the public should be doing that through its government.” Christopher Carpenter, the head of the Alameda County DA’s consumer protection division, said his office won’t make a decision on whether to work with private lawyers until the California Supreme Court rules on whether Prop 64 is retroactive. At that point, he said, many of the other issues surrounding how Prop 64 will be handled should be clarified. Carpenter added that DAs need to consider whether the intent of Prop 64 is to let plaintiff lawyers represent the public. “The voters passed Prop 64, and it seems to me that, by that, they want 17200 cases to be prosecuted in a particular way,” he said. Lawyers in the San Francisco DA’s consumer protection division declined to comment. The DAs’ concerns seem overblown to some city attorneys , who see nothing new in working with plaintiff attorneys. “It’s something we’ve always done,” said Clements, the S.F. deputy city attorney. Former San Francisco City Attorney Louise Renne — now a partner at Renne Sloan Holtzman & Sakai — said DAs fail to realize that working with private counsel can allow government to bring suits it otherwise couldn’t afford. “They don’t understand how it works,” she said. “If they can do a case on their own, that’s great. But if they cannot, it’s appropriate to look to the plaintiff bar.” In her 16 years as city attorney, Renne became known for using private law firms to take on the heavy lifting — and financial risk — of high-stakes litigation against tobacco companies, gun makers and energy companies. In these cases, she said, the city used the expertise, manpower and bank accounts of plaintiff firms to generate millions of dollars in awards for the city. And when the cases didn’t work out? “My firm lost more than $6 million on the gun suits,” said Patrick Coughlin, a partner with Lerach Coughlin. That’s $6 million, notes Renne, that wasn’t spent by taxpayers. Clements points to San Francisco’s share of a 1998 settlement with tobacco companies — almost $20 million a year for the city, in perpetuity — as an example of a suit that would have been impossible without private firms’ help. “It needed to be a partnership between the city and the private lawyers,” he said. “It was the city versus the tobacco industry, and the tobacco industry was very well lawyered up.” In that case, Renne worked with several firms, led by Lieff Cabraser Heimann & Bernstein and a team of lawyers at what is now Lerach Coughlin. The key to a good collaboration, says L.A. Assistant City Attorney Vincent Sato, is a contract that protects public funds and keeps public lawyers in control. Sato, who specializes in environmental litigation, says he has partnered successfully with plaintiff firms in the past. Plaintiff attorneys are not surprised that they get a friendlier reception from city attorneys. “The city attorneys, what they do is civil litigation, so they’re a little more open,” said Coughlin. Gregg Cohen, the Tehama County DA, said he’s not especially keen on working with the plaintiff bar. But he expects small DA offices, which often have no consumer protection specialists, to seriously consider partnering. “Small cities or counties with small resource pools probably would be more likely to work with private lawyers,” he said. While the bigger plaintiff firms say they’re optimistic that big-city DAs will change their minds, others are skeptical. James Wheaton, an East Bay plaintiff lawyer who represents nonprofits in 17200 suits against polluters, tried in the 1990s to collaborate with the DA Association’s traveling environmental prosecutor program. His proposal died on someone’s desk, he said, not because of any specific problems, but due to a general discomfort among DAs with the notion of collaboration. “Institutionally, they don’t do it,” Wheaton said.

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