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A recurring fallacy in any debate over legal ethics or public policy is to assume that the particular problem under examination is unique and unprecedented. Expand one's field of vision, and precedents and analogs quickly turn up. This rule applies with special force to the debate over retention by state attorneys general of private counsel to represent them on a contingent fee basis in the recent litigation against the tobacco industry. Because this litigation produced a highly successful outcome, while most private litigation against the tobacco industry has not, some are led to the conclusion that this combination of private counsel and public client is potent, unique, and probably troubling – or, at the least, new and noteworthy.

A wider-angled perspective on contemporary complex litigation suggests, however, that this newness is illusory. Although there are likely efficiencies associated with this combination (as with most other bargains struck in the market between sophisticated parties), the party most likely to be injured or short-changed by this relationship is not the defendant, but rather the state as a client. Thus, although this brief comment disputes the contentions made by others in this symposium that the combination of private counsel and public client circumvents legislative authority or distorts prosecutorial discretion, it does conclude that there are high agency costs associated with this relationship and that these agency problems justify enhanced ethical restraints.


Law | Legal Ethics and Professional Responsibility