Gardere's Faulk, Gray Challenge California Contingent Fee Ruling in U.S. Supreme Court
Environmental attorneys file a brief in the U.S. Supreme Court in support of a challenge to a California Supreme Court ruling allowing public authorities to use contingent fee counsel when prosecuting public nuisance cases.
Online, November 30, 2010 (Newswire.com) - Houston environmental lawyer Richard O. Faulk, Chair of the Litigation Department at Gardere Wynne Sewell LLP, and John S. Gray, a Houston Partner in the firm's Environmental Practice Group, have filed a brief in the U.S. Supreme Court on behalf of a number of industry associations who are challenging a controversial ruling by the California Supreme Court that allows California public authorities to use contingent fee counsel when prosecuting public nuisance cases.
A copy of the Atlantic Richfield Co. v. County of Santa Clara brief can be found at: http://www.gardere.com/Binaries/Press%20and%20Publications/Faulk_Santa_Clara_US_S_Ct_Amicus_Brief.pdf.
California courts traditionally have precluded contingent fee agreements for lawsuits filed in the public interest because such arrangements compromise the neutrality owed by public servants. Last summer, however, the California Supreme Court changed course by holding that contingent fee agreements were permissible if a state employee exercised adequate "control" over the private lawyers. The California defendants appealed to the U.S. Supreme Court, arguing that state employee "control" can neither be guaranteed nor enforced, and that without protection, the threat to the public interest violates constitutional due process.
Gardere's supporting brief agrees with those arguments. Recalling the tobacco litigation where similar arrangements generated massive fees for private lawyers, criminal investigation and even prison time for the Texas attorney general, it asserts that the California court's holding is constitutionally unsound "because it replaces prophylactic due process guarantees with unverifiable trust." Without such protections, the public is "relegated to dealing with the consequences of otherwise avoidable injuries."
Gardere's brief was filed on behalf of the National Association of Manufacturers, American Chemistry Council, National Petrochemical and Refiners Association, American Coatings Association, Property Casualty Insurance Association, and Coalition for Public Nuisance Fairness.
The U.S. Supreme Court is expected to decide early next year whether to review the case.
Gardere Wynne Sewell LLP, an AmLaw 200 firm founded in 1909 and one of the Southwest's largest full-service law firms, has offices in Austin, Dallas, Houston and Mexico City. Gardere provides legal services to private and public companies and individuals in areas of energy, hospitality, litigation, corporate, tax, government affairs, environmental, labor and employment, intellectual property and financial services.