More filed in Calif. outside counsel case

John O'Brien Apr. 1, 2009, 6:20pm


SACRAMENTO, Calif. (Legal Newsline) - The California Supreme Court must ensure that counsel representing a government entity remain only interested in justice, not money, attorneys for several paint companies argued in a recently filed brief.

Sean Morris of Los Angeles' Arnold & Porter made the argument in a March 26 brief in the case of several counties and municipalities that claim the former manufacturers of lead paint should be held responsible for its cleanup. Morris is representing Atlantic Richfield against the public nuisance action.

At issue is a 1985 decision in People ex rel. Clancy v. Superior Court. The case involved the City of Corona hiring a private attorney to bring a public nuisance case against alleged violators of a city ordinance. The attorney was paid more for successful than actions than unsuccessful ones.

"As this Court also has recognized, the prosecuting lawyer's requirement of absolute neutrality derives from two aspects of the sovereign nature of a government prosecution," the brief says.

"First, that as a representative of the sovereign, the prosecuting attorney can act justly only if the attorney acts with the impartiality required of those who govern.

"And, the attorney's impartiality is also necessary because the attorney has available the vast power of the government, a power that must not be abused."

Seven California counties and four cities (San Francisco, Los Angeles, San Diego and Oakland) claim the paint companies created a public nuisance when they made lead-based paint before it was outlawed in 1978. Similar suits have failed in Rhode Island, New Jersey, Missouri and Wisconsin.

In the Rhode Island case, the state Supreme Court ruled that Attorney General Patrick Lynch may hire outside counsel as long as he has the final say over actions in the lawsuit.

The California case is on hold while the contingency fee issue is sorted out. The trial court ruled for the paint companies, which include Sherwin-Williams, NL Industries and DuPont, but the Court of Appeals reversed the decision in favor of the plaintiffs.

The plaintiffs argue that the requirements of justness and impartially do not necessarily preclude the government entity from compensating its attorneys on a contingent fee, that their case differs from Clancy because it does not deal with threats of criminal liability and First Amendment concerns and that neutrality is not violated if the government bestos a final interest only on "subordinate" prosecuting attorneys but not on their "supervisors."

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