Contingency Fees Don't Violate Separation of Powers, Says Columbia Prof Michael C. Dorf

We lead-paint watchers are accustomed to hearing and repeating the conventional arguments against contingency arrangement between government entities and private law firms.  Maybe too accustomed.  That could be lulling us into a false sense of optimism that the contingency agreement in Rhode Island will be struck down by that state's Supreme Court and that even if the ruling is appealed in County of Santa Clara, et al. v Atlantic Richfield Co., et al. our position will triumph. 

Columbia Law Professor Michael C. Dorf aggressively argues against what has become the party line - the separation of power notion - in contingency battles.  In his blog Dorf on Law, Dorf states that contingency fee arrangements, for example, between state attorneys general and private lawyers do not violate the separation of powers. Period.

The standard argument, notes Dorf, is that such an agreement is wrong because "it vests executive power in private parties or because it appropriates funds [the private lawyers' cut of a successful verdict] without the express content of the legislature." Dorf censures this line of reasoning as weak. That's because, he goes on to explain, "The federal constitutional doctrine of separation of powers has no force in the states."  Those states which have separation of powers principles usually have those which are considerably weaker than those which apply on the federal level.

Dorf contends that is so because the tradition of contingency arrangements is even older than the United States of America.  Back then those private entities were called "relators" and they were able to file qui tam actions on the part of government entities.  The relators got a cut of the action. Those sorts of arrangements still go on today, for instance, to enforce the False Claims Act.

In addition, Dorf claims that contingency fees don't usurp the legislature's role in appropriating funds.  That would only be reality if the legislature itself passed a law prohibiting those kinds of agreements.

Instead of relying on the stock arguments, Dorf advises that this issue be approached as the complex one it is.  He observes, "Whether government should hire private lawyers working on contingent fees, and if so, on what terms, is a difficult policy question that depends on many factors, including other available resources for enforcement.

Readers can access Dorf on this topic of contingency fees here.

Comments

[Greedy Trial Lawyer]

Thank you for recognizing my heritage.