State v. Lead Industries Ass'n

951 A.2d 428

Nos. 2004-63-M.P., 2006-158-Appeal, 2007-121-Appeal

2008-07-01

Neil Kelly, John McConnell, Fidelma Fitzpatrick, Genevieve Allaire-Johnson, James Lee, Providence, for Plaintiff.

John A. MacFadyen, III, Donald Scott, Pro Hac Vice, Joseph Cavanagh, Laura Ellsworth, Pro Hac Vice, Paul M. Pohl, Pro Hac Vice, Thomas Bender, William Kayatta, Pro Hac Vice, John Tarantino, for Defendants.

Present: WILLIAMS, C.J., FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

Addressing the issues seriatim for a unanimous Court, Chief Justice Williams authored Tracks I and II and Associate Justices Suttell, Flaherty, and Robinson authored Tracks III, IV, and V, respectively. In this landmark lawsuit, filed in 1999, the then Attorney General, on behalf of the State of Rhode Island (the state), filed suit against various former lead pigment manufacturers and the Lead Industries Association (LIA), a national trade association of lead producers formed in 1928.

After the first trial resulted in a mistrial, a second trial commenced; that second trial, spanning four months, became the longest civil jury trial in the state’s history.¹ This monumental lawsuit² marked the first time in the United States that a trial resulted in a verdict that imposed liability on lead pigment manufacturers for creating a public nuisance.

IV

The Propriety of Contingent Fee Arrangements

Although we are keenly aware of the gravity of the issue and of the fact that thoughtful and potent policy-based arguments have been made on both sides of the issue, in the end we have concluded that, in principle, there is nothing unconstitutional or illegal or inappropriate in a contractual relationship whereby the Attorney General hires outside attorneys on a contingent fee basis to assist in the litigation of certain non-criminal⁴⁸ matters. Indeed, it is our view that the ability of the Attorney General to enter into such contractual relationships may well, in some circumstances, lead to results that will be beneficial to society — results which otherwise might not have been attainable.⁴⁹ However, due to the special duty of attorneys general to “seek justice” and their wide discretion with respect to same, such contractual relationships must be accompanied by exacting limitations. In short, it is our view that the Attorney General is not precluded from engaging private counsel pursuant to a contingent fee agreement in order to assist in certain civil litigation, so long as the Office of Attorney General retains absolute and total control over all critical decision-making in any case in which such agreements have been entered into.⁵⁰ See, e.g., County of Santa Clara v. Superior Court, 161 Cal.App.4th 1140, 74 Cal.Rptr.3d 842, 850 (2008). In our view, it is imperative that the case-management authority of the Attorney General, where a contingent fee agreement is involved, be “final, sole and unreviewable.” Philip Morris Inc. v. Glendening, 349 Md. 660, 709 A.2d 1230, 1243 (1998).⁵¹

As we have sought to explain in some detail earlier in this opinion, attorneys general are charged with the special duty to seek justice — a duty which is quite different from the responsibilities of the usual advocate. In accordance with that principle, we wholeheartedly agree with Chief Judge Mikva of the United States Court of Appeals for the District of Columbia when he wrote in almost perfervid language:

“Government lawyers * * * should also refrain from continuing litigation that is obviously pointless, that could easily be resolved, and that wastes Court time and taxpayer money. * * * [A] government lawyer has obligations that might sometimes trump the desire to pound an opponent into submission.” Freeport-McMoRan Oil & Gas Co., 962 F.2d at 47, 48.

The usual advocate, on the other hand, is not held to quite such an abnegatory and demanding standard. Accordingly, in order to ensure that a contingent fee agreement is not adverse to the standards that an attorney representing the government must meet, it is vital that the Office of the Attorney General have absolute control over the course of any litigation originating in that office.

At the risk of being repetitive, we would emphasize that the Attorney General’s discretionary decision-making must not be delegated to the control of outside counsel; rather, it is the outside counsel who must serve in a subordinate role. See United States v. Cox, 342 F.2d 167, 192 (5th Cir.1965) (“[The Attorney General] is the representative of the public in whom is lodged a discretion which is not to be controlled by * * * an interested individual, or by a group of interested individuals * * *.”); People v. Superior Court of Contra Costa County, 19 Cal.3d 255, 137 Cal.Rptr. 476, 561 P.2d 1164, 1172 (1977) (“[The] advantage of public prosecution is lost if those exercising the discretionary duties of the [Attorney General] are subject to conflicting personal interests which might tend to compromise their impartiality.”); see also County of Santa Clara, 74 Cal.Rptr.3d at 850 (holding that the duty of government attorneys to seek justice is not contravened when private counsel, retained on a contingent fee basis, “are merely assisting * * * in the litigation* * * and are explicitly serving in a subordinate role * *

In order to ensure that meaningful decision-making power remains in the hands of the Attorney General, it is our view that, at a bare minimum, the following limitations should be expressly set forth in any contingent fee agreement between that office and private counsel: (1) that the Office of the Attorney General will retain complete control over the course and conduct of the case; (2) that, in a similar vein, the Office of the Attorney General retains a veto power over any decisions made by outside counsel; and (3) that a senior member of the Attorney General’s staff must be personally involved in all stages of the litigation.⁵²

Moreover, not only must the Attorney General have absolute control over all stages of the litigation, but he or she must also appear to the citizenry of Rhode Island and to the world at large to be exercising such control. See Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11 (1954) (“[JJustice must satisfy the appearance of justice.”); see also Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 806, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987); Marshall v. Jerrico, 446 U.S. 238, 242, 243, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980); Superior Court of Contra Costa County, 137 Cal.Rptr. 476, 561 P.2d at 1172 (“[I]t is precisely because the prosecutor enjoys such broad discretion that the public he serves and those he accuses may justifiably demand that he perform his functions with the highest degree of integrity and impartiality, and with the appearance thereof.”)(emphasis added).

V