Some want to see restrictions on local-government use of private attorneys

By Taryn Phaneuf | Feb 5, 2017

SANTA ANA, Calif. — While district attorneys and attorneys general who sometimes hire private attorneys to help bring consumer-protection cases see it as a way to match resources with business giants, some civil-justice reform groups continue to scrutinize the practice in California.

John Doherty, new president of the Civil Justice Association of California, told the Northern California Record that he understands the problem, but doesn’t agree with the solution. He’s concerned about the inclusion of private attorneys on cases brought on behalf of the public for several reasons.

“I think some of the enforcement agencies feel like they don’t have the amount of resources to do the level of enforcement they’d like to do. Because they don’t see other options, they’ve picked up this practice in different cases,” he said. “If you deputize others to do the job of public protection, all the natural balances that are in place from either elected or appointed government officials disappear and it’s replaced by a profit motive.”

Officials in the Orange County District Attorney's office, which has hired private law firm Robinson Calcagnie Inc. a handful of times to help in large consumer-protection cases, told the Northern California Record that such criticism is wrongly applied to them. CJAC has personally called out Orange County for hiring private attorneys in the past.

In 2015, then-president Kim Stone penned an editorial for Voice of OC, a news site, praising the dismissal of a case brought against five companies who make opioid painkillers. Orange and Santa Clara counties sued the companies, alleging they engaged in false advertising, unfair business practices and creating a public nuisance.

“I trust a government lawyer who is going to get paid the same whether the case wins or loses to do the right thing more than I trust a contract contingency-fee plaintiff lawyer who only gets paid her fees if the case settles or wins,” Stone wrote. “We as citizens need to watch these kinds of dangerous liaisons between local prosecutors and plaintiff attorneys and try to stop them from happening.”

Susan Schroeder, OCDA chief of staff, said this is a “false narrative” in regard to Orange County, where hired private attorneys don’t have any decision-making power.

“We’re not in a position where we’re trying to enrich anybody’s pockets,” Joe D’Agostino, senior assistant district attorney in charge of the consumer-fraud unit, said. “Those civil penalties go into the DA/county coffers for the sole purpose to do further consumer-fraud cases. None of that money goes to anyone in our office — it doesn't go to the private attorney. They get paid based on the work they do.”

But the practice extends beyond Orange County, Doherty said.

“I think a lot of cities and counties have utilized this in different circumstances,” he said. “I think it’s a relatively common phenomenon that’s been growing, but we don’t have the numbers of what percentage of counties and cities have entered into these agreements. They’re not always public — it’s hard for us to get a full grasp on how widespread it is. We tend to find out about it when lawsuits are filed. That’s not a good way to track a policy issue as important as this.”

Additionally, Doherty said he admits there are some instances when a case may warrant help. But he’d like to see some parameters in place to require public officials to be choosy about when to hire private attorneys. A bill proposed last year in the California General Assembly would require local governments to ask certain questions before going that route. The bill was held when it didn’t look like it would get to committee, he said.

Known as AB 2804, the bill would require city council members and county supervisors to determine whether a contingency-fee contract “would be cost-effective and in the public interest” before entering such an agreement. It also would require local governments to exclude fines, civil penalties or punitive damages from fee calculations.

Doherty said CJAC will continue to pursue the issue this year.

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