Public Client Contingency Fee Contracts as Obligation.

• Author: Mayer, Seth

Contingency fee contracts predicate an attorney's compensation on the outcome of a case. Such contracts are widely accepted when used in civil litigation by private plaintiffs who might not otherwise be able to afford legal representation. However, such arrangements are controversial when government plaintiffs like attorneys general and local governments retain private lawyers to litigate on behalf of the public in return for a percentage of any recovery from the lawsuit. Some commentators praise such public client contingency fee contracts, which have become commonplace, as an efficient way to achieve justice. Critics, however, view them as corrupt, undemocratic, and unethical.

This Comment contributes to this debate by arguing that public client contingency fee contracts are not only permissible, as some have argued, but that certain legal doctrines obligate government entities to form these contracts. First, this Comment contends that the principle that government litigators have a special duty to "seek justice" obligates government actors to enter into public client contingency fee contracts. The obligation to form such contracts is triggered when civil justice requires enforcement, but constraints prevent government attorneys from pursuing litigation. This contention undermines critics' claim that the "seek justice" principle means public client contingency fee contracts are impermissible. Second, this Comment argues that the public trust doctrine also obliges government entities to form public client contingency-fee contracts in some instances. These arguments undermine attacks on public client contingency fee contracts and demonstrate the existence of a heretofore ignored obligation in public civil litigation.

TABLE OF CONTENTS INTRODUCTION I. PUBLIC CLIENT CONTINGENCY FEE CONTRACTS A. Public Client Contingency Fee Contracts and Their Advantages 1. The Evolution of the Legal Community's Attitude toward Contingency Fees 2. Public Client Use of Contingency Fee Contracts 3. Parens Patriae and Other Procedural Advantages of Public Client Litigation B. Criticisms of Public Client Contingency Fee Contracts 1. Corruption and Contingency Fee Contracts 2. Public Litigation's Special Status and Contingency Fee Contracts II. THE "SEEK JUSTICE" OBJECTION TO PUBLIC CLIENT CONTINGENCY FEE CONTRACTS A. Criminal Prosecution, the Obligation to "Seek Justice, " and the Duties of Government Civil Litigators 1. Criminal Prosecutors' Role and Obligations 2. Government Civil Litigators' Role and Obligations B. Public Client Contingency Fee Contracts and the Obligation to "Seek Justice" III. THE OBLIGATION TO FORM PUBLIC CLIENT CONTINGENCY FEE CONTRACTS A. Affirmative and Negative Obligations to "Seek Justice" B. The Affirmative Obligation to "Seek Justice" in Government Civil Litigation C. The "Seek Justice" Principle Creates an Affirmative Obligation to Form Public Client Contingency Fee Contracts D. The Public Trust Doctrine Creates an Affirmative Obligation to Form Public Client Contingency Fee Contracts CONCLUSION INTRODUCTION

Thousands of plaintiffs, including states, counties, and cities, have joined the sprawling litigation against companies that manufactured, distributed, and sold opioids, seeking damages for a crisis that has caused hundreds of thousands of deaths. (1) Many of the government entities bringing suit have retained private counsel on a contingency fee basis. (2) Some critics decry governments' use of such contingency fee contracts as creating conflicts of interest, duplicative litigation, and obstacles to settlement, among other things. (3) Others suggest these contracts empower under-resourced governments to bring complicated lawsuits that are in the public interest. (4) At least since the tobacco litigation of the 1990s, where government officials also relied upon contingency fee agreements with private attorneys, such arrangements have been controversial. (5)

Public client contingency fee contracts, as this Comment will term them, involve private attorneys agreeing with public officials like state attorneys general to litigate on behalf of the public in exchange for payment. (6) As with many contingency fee agreements, their payment is usually a percentage of any monetary relief these private attorneys recover during the litigation, though government actors can cap or otherwise regulate such fee arrangements. (7)

Public client contingency fee contracts have been the subject of legal and political dispute. For instance, legislators in Minnesota unsuccessfully tried to ban these agreements when an outside firm earned $125 million after recovering $900 million for the state in a water contamination lawsuit. (8) Similarly, the West Virginia attorney general unsuccessfully litigated against private lawyers hired by his predecessor in an attempt to reduce their contingency fees. (9) At the federal level, President George W. Bush imposed a ban on public client contingency fee agreements via executive order. (10) More recently, the Supreme Court denied certiorari when an opioid manufacturer objected to a lawsuit by New Hampshire because the state had relied on private contingency fee lawyers. (11)

Critics attack public client contingency fee contracts as undemocratic, unethical, contrary to the separation of powers, abusive, and threatening to public authority, among other things. (12) By contrast, proponents hail them as crucial to achieving civil justice in an era of hostility toward litigation on behalf of plaintiffs. (13) This Comment goes beyond previous defenses of public client contingency fee contracts: it argues not just that they are permissible but that, in some circumstances, attorneys general and other public officials are actually ethically obligated to form them.

One major criticism of such agreements rests on a comparison between the ethical obligations of government civil litigators and those of criminal prosecutors. (14) It is a fixed point in legal ethics that criminal prosecution for profit is unethical. (15) Some argue the prohibition on prosecution for profit is based on criminal prosecutors' broader duty to "seek justice." Specifically, they contend that these obligations, which demand that criminal prosecutors embody neutrality, extend to government civil litigators as well. (16) Empowering a private attorney to earn a contingency fee by winning monetary relief on behalf of the government in civil litigation undermines that neutrality, they contend. (17) Critics worry profit-driven motivations may warp a private attorney's decisionmaking, leading them to deviate from making the kind of litigation choices someone representing the public is obliged to make. (18) In short, critics fear that private attorneys will not honor--or at least will not appear to honor--the obligation to "seek justice" that arguably applies to government attorneys. (19)

This argument cuts in both directions, however. As this Comment will explain, the "seek justice" principle relied upon by critics to condemn public client contingency fee contracts, as well as other doctrines, actually creates an obligation to enact these contracts. (20) Criminal prosecutors' obligations involve exercising discretion about when not to bring cases, as well as when to bring them, depending on what justice demands. (21) If the same obligation to "seek justice" applies in both criminal and civil enforcement, government attorneys are similarly obligated to bring some civil enforcement actions. (22) Further, an additional ground affirmatively obligates public officials to bring suit in certain circumstances: the public trust doctrine. (23) Under this doctrine, the state holds certain resources in trust on behalf of the public and is sometimes obligated to sue in order to protect them. (24)

Despite these affirmative requirements to file some suits, resource constraints prevent government attorneys from bringing every required civil enforcement action. (25) In the nonideal, actual world in which civil enforcement operates, public client contingency fee contracts are sometimes the only realistically available route to discharging their obligations. (26) As a result, in cases where civil justice requires enforcement, but resource constraints prevent government attorneys from pursuing litigation, contracting with private attorneys can become an ethical obligation. (27)

Commentators do not universally agree that the "seek justice" principle applies to public civil litigation, and this Comment takes no position on this question. (28) Instead, by pointing to the "seek justice" principle and the public trust doctrine, it draws out the affirmative obligation to bring some public litigation, which, in turn, creates an obligation to form public client contingency fee contracts. Although a full theory of when an obligation to form such contracts is triggered is beyond the scope of this Comment, these arguments demonstrate the existence of a previously ignored obligation in public civil litigation contexts.

This Comment argues that when government officials are obliged to bring civil suits but lack the resources to do so, they have an affirmative obligation to form public client contingency fee contracts. Part I provides historical background about contingency fee contracts, the potential benefits such arrangements offer to public clients and their constituencies, and some of the risks that have prompted calls to reform or limit public client contingency fee contracts. Part II explains why some commentators have argued that government litigators have an ethical obligation to "seek justice" that is inconsistent with the formation of public client contingency fee contracts. Part III counters these criticisms, arguing that, at least in some circumstances, the "seek justice" principle and the public trust doctrine indicate that public officials have an affirmative obligation to form public client contingency fee contracts.

1. PUBLIC...