The U.S. Chamber filed an amicus brief urging the U.S. District Court for the Northern District of Texas to limit government retention of contingent fee counsel.
In this case, Hunt County, Texas hired private attorneys to seek civil penalties for citizens’ alleged violations of state and municipal clean water and waste disposal laws, with those attorneys standing to pocket up to the lesser of 35 percent of any recovery or four times the attorneys’ base fee if they prevail. On behalf of the County, a plaintiffs’ firm sued a private landowner for improperly storing a pile of wood on his property, asking for about $2 billion in total statutory fines for the wood pile. In response, the landowner brought his own lawsuit challenging the constitutionality of the contingency-fee agreement.
The Chamber’s brief argued that prosecution of civil enforcement actions by contingency-fee lawyers violates due process because a prosecutor may not have a substantial personal interest in the case and has a duty to act solely in the public interest. Further, any nominal government control over contingency-fee counsel does not cure the taint of financially interested civil prosecutors because such an illusion of “control” does not practically eliminate unfairness, nor does it eliminate the appearance of impropriety.
Sally L. Pei, Christopher M. Odell, and Robert Reeves Anderson of Arnold & Porter LLP served as co-counsel for the U.S. Chamber of Commerce on behalf of the U.S. Chamber Litigation Center.