Private Contingent Fee Lawyers and Public Power: Constitutional and Political Implications

Abstract

A dangerous trend has developed in the litigation of state civil damage claims brought against private individuals and entities: the state’s use of private contingent fee lawyers, who are compensated based on a percentage of the amount recovered. As is the case when contingent fee lawyers represent private clients, if the state loses the litigation the lawyers recover nothing. While such an arrangement arguably has much to recommend it in the case of purely private litigation, when employed by the state it threatens core precepts of American political and constitutional theory. Because, unlike private litigants, the state wields potentially dominating power over private society, those exercising the state’s legal power are obligated by democratic and constitutional principles, as well as the dictates of legal ethics, to assess and pursue the public interest without direct concern for personal or private gain. When private contingent fee attorneys are vested with authority to vindicate the interests of the...