holding that, to ensure that public attorneys exercise “real rather than illusory *430 control” over contingent-fee counsel, contingent-fee agreements “must provide: (1) that the public-entity attorneys will retain complete control over the course and conduct of the case; (2) that government attorneys retain a veto power over any decisions made by outside counsel; and (3) that a government attorney with supervisory authority must be personally involved in overseeing the litigation”
How later courts described this case
- holding that, to ensure that public attorneys exercise “real rather than illusory *430 control” over contingent-fee counsel, contingent-fee agreements “must provide: (1) that the public-entity attorneys will retain complete control over the course and conduct of the case; (2) that government attorneys retain a veto power over any decisions made by outside counsel; and (3) that a government attorney with supervisory authority must be personally involved in overseeing the litigation”
- holding that, to ensure that public attorneys exercise "real rather than illusory control" over contingent-fee counsel, contingent-fee agreements "must provide: (1) that the public-entity attorneys will retain complete control over the course and conduct of the case; (2) that government attorneys retain a veto power over any decisions made by outside counsel; and (3) that a government attorney with supervisory authority must be personally involved in overseeing the litigation"
- finding the absolute prohibition on contingency-fee agreements, necessary in criminal cases, was unwarranted in a civil public-nuisance case, where neither fundamental constitutional rights nor the right to continue operating an existing business were implicated; however, notwithstanding this conclusion, the private attorneys prosecuting the action were subject to but satisfied the “heightened standard of ethical conduct” and neutrality “applicable to public officials acting in the name of the public”
- noting if defendants are found liable for a nuisance, the question will be “how the nuisance should be abated,” resulting, “at most, in defendants’ having to expend resources to abate the…nuisance they allegedly created, either by paying into a fund dedicated to that abatement purpose or by undertaking the abatement themselves”
Written by the judges who cited it.
The opinion
WERDEGAR, J., Concurring.
I concur in the judgment insofar as it vacates the superior court’s order barring the plaintiff public entities from paying their private counsel under contingent fee agreements.
Although I do not agree with every aspect of the majority’s reasoning, I do agree this court spoke too broadly in 1985 when it prohibited contingent fee agreements in all public nuisance cases. (See People ex rel. Clancy v. Superior Court (1985) 39 Cal.3d 740, 748-750 [ 218 Cal.Rptr. 24 , 705 P.2d 347 ] (Clancy).) As the majority explains, public nuisance cases comprise a wide range of factual situations, some of which do not necessarily entail a conflict of interest between public-entity plaintiffs and private attorneys retained under contingent fee agreements. To limit Clancy is thus appropriate, as the majority concludes.
In this case, however, at least a possible conflict of interest arises from the combination of two circumstances: The public entities assert they cannot afford to pay private counsel other than a contingent fee, and some of the fee *66 agreements at issue give private counsel a share of the value of any abatement ordered by the court. Given the hypothetical choice between an abatement order of great public value and a less valuable cash settlement, 1 both the public and the private attorneys have an incentive to advocate the less valuable cash settlement, as it provides funds from which private counsel can be paid without an appropriation of public money representing the private attorneys’ share of the value of abatement. Certainly this incentive does not amount to a personal conflict of interest requiring the public attorneys’ recusal, as the majority explains (maj. opn., ante, at p. 59), but it does lead me to question whether public attorneys under all foreseeable circumstances will be able to exercise the independent supervisory judgment the majority concludes is essential if private counsel are to be retained under contingent fee agreements. Here, however, the parties’ briefing on the subject of possible remedies is so vague, any such conflict is merely speculative.
In concurring in the judgment, I am also influenced by the concern that to grant defendants’ motion might encourage parties in future cases to bring belated motions seeking to interfere with their opposing parties’ attorney-client relationships for tactical reasons. Although plaintiffs commenced this action in 2000, and although defendants do not assert they learned of the contingent fee agreements only recently, 2 defendants did not challenge those agreements until 2007, after losing pretrial dispositive motions on appeal. 3 (See County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292 [ 40 Cal.Rptr.3d 313 ].) In ruling on a motion to disqualify counsel, the court may properly consider the possibility that the motion is a tactical device (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems (1999) 20 Cal.4th 1135, 1145 [ 86 Cal.Rptr.2d 816 , 980 P.2d 371 ]; Comden v. Superior Court (1978) 20 Cal.3d 906, 915 [ 145 Cal.Rptr. 9 , 576 P.2d 971 ]) and deny the motion when unreasonable delay has caused great prejudice (In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 599-600 [ 283 Cal.Rptr. 732 ]; River West, Inc. v. Nickel ,(1987) 188 Cal.App.3d 1297, 1313 [ 234 Cal.Rptr. 33 ]). To grant defendants’ motion in this case could as a practical matter force plaintiffs to abandon their lawsuit after nearly a decade of pretrial litigation and discovery. While defendants have asked the court not to disqualify plaintiffs’ counsel but instead simply to bar plaintiffs from compensating counsel on a contingent basis, the only authority for defendants’ motion is *67 the body of law concerning disqualification. Because there is evidence indicating that an order prohibiting contingent fees would as a practical matter preclude private counsel’s participation—in effect disqualifying them—the rule requiring timely presentation of the motion would logically apply.
Rivera, J., * concurred.
The government cannot recover damages in public nuisance cases. (People ex rel. Van de Kamp v. American Art Enterprises, Inc. (1983) 33 Cal.3d 328, 333, fn. 11 [ 188 Cal.Rptr. 740 , 656 P.2d 1170 ].)
Plaintiff City and County of San Francisco’s contingent fee agreement, for example, has been public knowledge since 2001, when the board of supervisors authorized the city attorney to enter into it. (S.F. Res. No. 190-01, as amended Feb. 13, 2001.)
1 recognize that until 2007 the complaint included additional causes of action that did not implicate contingent fee concerns, but this would not have precluded an earlier motion to prohibit contingent fee arrangements with respect to the public nuisance cause of action.
Associate Justice of the Court of Appeal, First Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.