Well, they did it.
After months of high tension -- 26 of them, in fact -- the Supreme Court of California at last ruled this week on whether cities, counties, villages, water districts, wide spots in the road, and other public entities may hire private lawyers to represent them in public nuisance cases on a contingent fee basis.
Yes. Yes, they can. County of Santa Clara v. Superior Court, No. 163681 (Cal. July 26, 2010).
Sometimes. It depends on the type of nuisance case. If it aims to shut down a dirty movie and book store, the Court's decision in People ex rel. Clancy v. Superior Court, 39 Cal.3d 740 (1985), would bar a contingent fee arrangement. But where the government simply wants to force lead paint manufacturers to scrape the lead paint off all the houses and buildings on which it lingers, the case falls outside the rule of Clancy as it doesn't cast the private lawyers as much in the role of a criminal prosecutor.
The Court did call for controls on the contingent fee lawyers' discretion. Among other things, the Court held, the engagement letter must specify that government lawyers shall supervise and direct the private contingent fee lawyers and shall retain authority to make all kinds of decisions, especially including settlement. Id., slip op. at 28-30 (citing State of Rhode Island v. Lead Industries Ass'n, Inc., 951 A.2d 428 (R.I. 2008)).
Blawgletter saw this coming a mile away. See Rhode Island Supreme Court Upholds State's Contingent Fee Contract with Private Counsel (July 1, 2008)'; Court Clear Anaheim to Pay Contingent Fee in Tax Case (Jan. 7, 2010); The Public Contingent Fee Option (July 30, 2009).
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