The California Supreme Court review of the use of contingency in a a specific public nuisance case is already turning out to be extraordinary - and a date for oral arguments hasn't even been scheduled yet.
The issues are so convoluted in legal, ethical, public policy and financial questions. In response to the filing of amicus briefs, Sherwin-Williams, through its Jones Day attorneys, has filed four briefs. One of them addresses the amicus curiae from Public Justice, P.C.
The way the lawyers representing Sherwin-Williams present the issue is that Public Justice P.C. advanced a "novel view." That position, say the Jones Day attorneys, is that "the ethics of the government lawyers turn on the wealth of the defendant targeted by the Government." The brief goes on to state:
"According to AMICUS, the Government must have the ethical flexibility to allow private investment in public lawsuits so that justice may be done. Only by permitting contingent fees in public nuisances cases, AMICUS contends, can there be 'an even playing field between government entities and wealthy defendants.' In short, the end justified the means."
Them are fighting words in a capitalist society. And we can bet every Chief Executive Officer in America is watching this play out. So are those concerned about any kind of situational ethics permeating the legal system as well as public policy Of course, the lawyers argue, no way. Not now. Not ever. Their three key contentions are:
- The parties' relative wealth does not justify constitutional or ethical shortcuts and is an unworkable basis on which to allow government conduct.
- Alternative fee arrangements support meritorious at a fraction of the cost.
- Contingency fee agreements in other cases do not threaten the public interest.
The brief contains a castigation of Ron Motley, the named partner of one of the contingency fee firms involved in the original lawsuit. The Ghost of Rhode Island's lead paint public nuisance litigation, as anticipated, hovers over this review.
Soon I will present the matters covered in the three other Sherwin-Williams's briefs.
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