Contingent Fee Lawyers In Public Interest Cases Face Real Risks

David Lowe

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Today's New York Times has published a piece by legal affairs columnist Adam Liptik raising questions about state and local governments' use of contingent fee lawfirms to handle major litigation, such as tobacco and environmental pollution cases. Most of the criticism of the fee arrangements comes out of the mouths of lawyers defending the polluters and other corporate interests, who would rather litigate against understaffed government attorneys offices than the skilled specialists who take on these high-risk, work-intensive cases. Some of the criticism contends that the contingent fee firms are making a windfall at the public expense. Other criticism suggests that if the private firms are really interested in public justice, they will be satisfied to work by the hour. Of course, paying these firms by the hour would require expenditure of public taxpayer money, making it far less likely that these important public interest cases get pursued.

I would suggest that those who criticize the arrangements look at the Milwaukee lead paint case that just concluded after a three week trial. After years of work, it appears that the private law firm hired by the city will get zilch for their efforts. The jury decided that lead paint was indeed a public nuisance, but relieved the lead paint industry of responsibility to reimburse the City for the $52.6 million spent to clean up the lead paint in some 11,000 homes located in the city's poorest neighborhoods. Here the City of Milwaukee brought an important case that established the City's standing to sue the manufacturer of a product that has caused widespread lead poisoning of children, a right that will hopefully encourage more responsible conduct from industry, and did not have to pay for those legal services under the contingent fee arrangement that some would criticize. I think the City's taxpayers got a pretty good deal.