It is no secret that Americans’ trust in the justice system is in the gutter. You can see the signs everywhere, from near-record low confidence in the federal judiciary to the growing belief that courts do not deliver “equal justice for all.” Every leader and player in the justice system now must cultivate and rebuild that trust, and it starts with not outsourcing their profession to lawyers looking to line their pockets rather than do justice.
Representing the government — whether as a district attorney, U.S. attorney or attorney general — is a tremendous responsibility. From military courts-martial to federal and state courts, the decisions made in these influential roles can take away someone’s liberty, fortune and good reputation. Unfortunately, there has been a concerning trend in this country to outsource that responsibility.
Public actors, including some local and state governments, district attorneys and attorneys general nationwide have enlisted private litigation firms operating on a contingency basis to bring civil public nuisance lawsuits. This represents a misuse of the legal system, driving up costs for everyone and, in some cases, undermining the public benefits of legitimate lawsuits.
But even more than that, it amounts to an abuse of the justice system by the very people whose primary job is to uphold it.
The vast sums of money at stake have, at times, unfortunately, resulted in misaligned interests, unintended consequences, and led to a series of bad public policies.
Law firms operating on a contingency basis have recruited nearly two dozen municipalities, cities and states to sue energy producers on meritless grounds to hold them liable for the purported effects of climate change. While these lawsuits do not have any real potential for addressing climate change and could vastly increase the cost of energy, they do present the potential for huge profits for lawyers. Private litigation firms have also persuaded some localities to reject global opioid settlements, with concerning consequences.
For example, Washington state’s attorney general has opted out of critical parts of a $26 billion opioid settlement that nearly every other state in the country signed onto. Instead, he is pursuing a legal strategy spearheaded by private litigators that, if successful, could set a concerning new legal precedent for nuisance law and leave room for companies of any size to be attacked if someone doesn’t like their product or finds them politically undesirable.
Such a legal strategy of suing opioid manufacturers — which previously failed in Oklahoma, leaving residents empty-handed in the case of one such lawsuit — could also jeopardize or delay the receipt of funds that are needed at a critical time.
While many local communities have been waiting for the cavalry to arrive in the form of money and resources, the opioid crisis has evolved into a full-blown criminal fentanyl trafficking enterprise. Nationwide, there were more than 105,000 drug overdose deaths last year, and the vast majority involved an opioid of some kind. So, when lawyers persuade state and local governments into holding out for bigger paydays that may never materialize or are years away, at best, in pursuit of millions in fees that will wind up in their pockets — instead of directed to local entities struggling with the opioid crisis — they do their clients a considerable disservice.
This is not how our justice system is supposed to work. We need and deserve a court system where the government is represented by government lawyers whose sole mission and motive is to do the right thing, not to earn a bigger payday. To be sure, lawyers working on contingency fees play an important role in our legal system, but that role is not representing “we the people.”
As citizens become educated that their state and local governments are enriching lawyers and risking hundreds of millions of dollars in pursuing punitive judgments through a roll of the dice, perhaps this practice will discontinue. Local leaders who understand that their constituents can do better when the government proceeds only on those cases that are genuine public nuisances with a staff that doesn’t include contingency-fee lawyers will go far in serving the public good.