Public Benefit vs. Profitability

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In the last President's Page, I ended my comments with a quote from St. Thomas More, who, in 1999, was voted "Lawyer of the Millennium" by the Law Society of Great Britain. To me, he embodied all that is good in our profession and despite the

many trials, tribulations, and temptations presented to him, he continued to persevere and "do the right thing." He forfeited all of his earthly fame, fortune, and indeed, his life, by upholding what was good and just. Therefore, I cannot help but reflect on More's ideals when presented certain issues regarding our civil justice system and how it is misused by some within our profession.

At the Lawyers for Civil Justice meeting in early December, there was considerable discussion regarding the misuse and misapplication of legal theories such as the tort of public nuisance by plaintiffs' attorneys in order to achieve an end and assess liability through the use of this theory, a theory never intended to be used in this manner. The "unholy alliance" between State Attorneys General who contract with Special Assistants to prosecute these actions is even more disturbing. These private litigators are hired on a contingency fee basis to pursue highly regulated and legal activity, not for the public good, but for private profit.

While no one can argue that dangerous, harmful, or defective products need to be addressed, a comprehensive legislative and regulatory scheme, not litigation, is the proper means to achieve that desired end. Legislation through litigation and particularly the use of novel legal theories or the misuse of valid legal theories is fraught with danger. Aside from the obvious ethical issues and charges of cronyism, numerous other harmful issues present themselves. The retention of these Special Assistants, though nominally working on behalf of "the public," are not subject to the control of the state. Oftentimes, the agreements executed by attorneys general with private litigators give almost total control to the contingency fee attorney. This abdication of state authority is even more dangerous because this virulent species of litigation is endorsed by the state's moral authority or seal of approval.

As everyone knows, another problem in these arrangements involves the use of contingency fees designed to give a private litigant who cannot afford an hourly lawyer's fee access to the courts' contingency fee arrangements. However, State Attorneys General and, indeed, the state itself already have access to the courts, obviating the need for any contingency fee arrangement. Another pitfall of these arrangements is the effect on morale of loyal and dedicated public servants working in the Attorney General's office. As one Assistant Attorney General who worked diligently on the tobacco litigation commented, "The plaintiff's lawyer got $50 million dollars and I got a plaque!"

Oftentimes, this private litigation is against legally acceptable and highly regulated products. These suits are an attempt to circumvent the legislative authority vested with elected public officials, not privately selected lawyers. As Professor Victor Schwartz commented, "If no rational brakes are applied to the Attorney Generalprofessional injury attorney alliance, public health and safety questions may no longer be debated and settled by elected officials beholden to the will of the people. Instead, personal injury lawyers motivated by profit joined by selective attorney generals and judges who want to make, not interpret, the law will fill that role."

Perhaps, the most dangerous aspect of these arrangements is the temptation which is inevitably involved when such large sums of money are at stake. Some of the recent publicity regarding class actions, the misuse of legal theories, and the use of Special Assistants include: a 72-year-old New York lawyer being indicted by a federal grand jury for his role in an alleged scheme to pay millions in kickbacks to clients in exchange for their serving as named plaintiffs in class actions; a California plaintiff lawyer who helped turned class action lawsuits into a lucrative trend pleading guilty to a conspiracy charge stemming from his role in a wide-ranged kickback scheme; an attorney pleading guilty to conspiracy to bribe a judge and agreeing to assist federal prosecutors in a case involving one of the nation's wealthiest trial lawyers; two attorneys and a state auditor being indicted in an alleged conspiracy to bribe a judge; a State Attorney General being sued for conducting "warrantless searches and seizures" of an insurance company's property by virtue of too close ties with a private attorney and being enjoined from engaging in certain acts; and, a federal judge requesting the U.S. Attorney to prosecute a private attorney for criminal contempt noting that the Attorney General and the private litigant had "teamed up to bully State Farm in the civil and criminal settlements."

Thankfully, while the type of conduct outlined above is certainly not the norm in our profession, one cannot deny that the amount of press and publicity associated with this type of conduct does the legal profession no good. This is why it is so important for associations such as the IADC, in conjunction with its sister associations and working through groups such as the Lawyers for Civil Justice, to attempt through legislative proposals, the filing of amicus briefs in key cases, participating in public forums to educate judges, legislators, and the public on the harm of these type of class actions and Special Assistants arrangements, to level the playing field.

Lest anyone misunderstand, I am not advocating denial of access to the courts for anyone with a legitimate claim and the use of fair methods to be compensated. I am opposing the unjust fusion of elected public attorneys who are charged with protecting the public's interest and selected private counsel who seek extravagant fees without any accountability to anyone. These misguided efforts use the law not to uplift and protect but to oppress and debase our civil justice system. As we continue the IADCs fight for fairness, we are encouraged by Thomas More to fight the good fight.

"You must not abandon the ship in a storm because you cannot control the winds.... what you cannot turn to good, you must at least make as little bad as you can. "

Thomas More, Utopia, 1516.

Through our efforts, we will advance the causes of civil justice and maintain the practice of law as a profession and not a racket.