In the last President's Page, I ended my comments with a quote from St. Thomas More, who, in 1999, was voted "Lawyer of the Millennium" by the Law Society of Great Britain. To me, he embodied all that is good in our profession and despite the many trials, tribulations, and temptations presented to him, he continued to persevere and "do the right thing." He forfeited all of his earthly fame, fortune, and indeed, his life, by upholding what was good and just. Therefore, I cannot help but reflect on More's ideals when presented certain issues regarding our civil justice system and how it is misused by some within our profession.
At the Lawyers for Civil Justice meeting in early December, there was considerable discussion regarding the misuse and misapplication of legal theories such as the tort of public nuisance by plaintiffs' attorneys in order to achieve an end and assess liability through the use of this theory, a theory never intended to be used in this manner. The "unholy alliance" between State Attorneys General who contract with Special Assistants to prosecute these actions is even more disturbing. These private litigators are hired on a contingency fee basis to pursue highly regulated and legal activity, not for the public good, but for private profit.
While no one can argue that dangerous, harmful, or defective products need to be addressed, a comprehensive legislative and regulatory scheme, not litigation, is the proper means to achieve that desired end. Legislation through litigation and particularly the use of novel legal theories or the misuse of valid legal theories is fraught with danger. Aside from the obvious ethical issues and charges of cronyism, numerous other harmful issues present themselves. The retention of these Special Assistants, though nominally working on behalf of "the public," are not subject to the control of the state. Oftentimes, the agreements executed by attorneys general with private litigators give almost total control to the contingency fee attorney. This abdication of state authority is even more dangerous because this virulent species of litigation is endorsed by the state's moral authority or seal of approval.
As everyone knows, another problem in these arrangements involves the use of contingency fees designed to give a private litigant who cannot afford an hourly lawyer's fee access to the courts' contingency fee arrangements. However, State Attorneys General and, indeed, the state itself already have access to the courts, obviating the need for any contingency fee arrangement. Another pitfall of these arrangements is the effect on morale of loyal and dedicated public servants working in the Attorney General's office. As one Assistant Attorney General who worked diligently on the tobacco litigation commented, "The plaintiff's lawyer got $50 million dollars and I got a plaque!"
Oftentimes, this private litigation is against legally acceptable and highly regulated products. These suits are an attempt to circumvent the legislative authority vested with elected public officials, not privately selected lawyers. As Professor Victor Schwartz commented, "If no rational brakes are applied to the Attorney General--professional injury attorney alliance, public health and safety questions may no longer be debated and settled by elected officials beholden to the will of the people. …