California Bar Journal
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Inspiration from Erin Brockovich
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Diane KarpmanLegislators and elected officials have often maligned plaintiffs’ lawyers. Psychothera-pists might characterize this vilification as an attempt by these politicians to overcome their own feelings of inadequacy and low self-esteem, which could be engendered by comparing their own accomplishments to the achievements obtained by some trial lawyers. Don’t blame them; after all, it’s not their fault that our system mandates the expenditure of vast sums of money to succeed in the political process, which might make it difficult for them to take any action against the powerful agricultural, pharmaceutical, firearm or HMO lobbies.

Yet, consumer groups, the elderly, and even innocent children on playgrounds still need a modicum of protection. This can be as simple as safety locks on guns. What is fascinating to observe is the “bonding” of government attorneys general and plaintiffs’ lawyers, combining their war chests in a new type of legal activism and social engineering.

Pundits and critics frequently attempt to disparage plaintiffs’ lawyers by implying that they are only “in it” for the money. However, those naysayers fail to consider that contingency fee agreements are inherently risky business. They require that the lawyers actually invest their time and money (for costs) in clients’ cases. This justifies a greater recovery, since the lawyers assume the risk of losing everything, including their shirts.

When the fees are too great, some may argue that they are unconscionable, pursuant to Rule of Professional Conduct 4-200. Yet, in one remarkable case, Brobeck, Phleger & Harrison v. The Telex Corp. (9th Cir. 1979) 602 F. 2d 866, a million-dollar minimum fee was sustained due to the status of both the corporate client and the firm. One of the rule’s 11 criteria is the relative sophistication of the client and the attorney. The sophisticated client even had the assistance of experienced in-house counsel when it entered into the fee agreement.

Gosh, some sophisticated clients have even been known to manipulate the rules (especially in legal malpractice) to their advantage. The plaintiffs’ counsel in the tobacco litigation boldly risked everything and entered into detailed fee agreements with states’ attorneys general. Maybe these were very sophisticated clients, possibly using the rules and public opinion to their advantage. OK, the fees would have been humongous, but let us not forget that there was a reason the defendants were called “Big Tobacco.”

Historically, each side of litigation consisted of one lawyer and one client. It was individual in nature. Does anyone think that the founding fathers, in crafting our system, could in their wildest dreams have anticipated consolidated litigation with thousands of clients, coupled with entrepreneurial litigators who may be able to force corporations to their knees, if they lack the necessary resources to litigate claims? This could not have been part of the original game plan.

E-mail comments are welcome, but please don’t show this to either Charlton Heston, Tony Soprano or any of their esteemed colleagues.

Diane Karpman can be reached at 310/887-3900 or