Ethics

[This guest post is by Mitchell Simon, of Franklin Pierce.  Simon teaches PR, torts, and Fundamentals of Practice, and is an active practitioner in several fields.]

In his June 27, 2010 post, John Steele noted that the Louisiana legislature declined to overturn its current ban on the attorney general hiring private attorneys on a contingent fee basis. The Louisiana House of Representatives had before it a proposal to allow the attorney general to hire private counsel on a contingent basis for the BP matter, with a cap on any fee recovery of $100 million. In light of the complex legal landscape caused by the oil spill, this ban has become particularly significant.

This might then be a good time to consider the ethical issues presented by the use of contingent fees in cases brought by the government. It is well settled that a criminal prosecutor has duties beyond representing the government. Berger v. United States, 295 U.S. 78 (1935). Thus, a lawyer working with a contingent fee in the outcome has a conflict with his or her duties as a prosecutor to seek justice and serve the public interest.

Less clear is the extent to which governmental lawyers in a civil matter have a higher ethical duty than opposing lawyers. Compare People ex rel. Clancy v. Superior Court, 705 P.2d 347 (Cal. 1985)(invalidating a contingent fee arrangement in a public nuisance case) with San Francisco v. Philip Morris, 957 F. Supp. 1130 (N.D. Cal. 1997)(permitting contingent fees in tobacco litigation). One emerging distinction seems to be between cases where the government is exercising sovereign authority and ones in which government is acting as a market participant, such as tort and contract cases. 

It is too early to know the nature of the claims that will be brought in the Gulf spill. But this presents an opportunity to look at the competing principles at stake. For example, how does the need of states to access additional legal resources in light of the legal firepower available to large corporations balance against the ethical duties of governmental lawyers? What has been the experience of those who have been involved in cases of this type either as a government lawyer, outside counsel or defense counsel?