As Rhode Island and Ohio wrap up the public nuisance lead abatement cases against paint manufacturers, California is left as the only state with this type of litigation still pending.

In 2007, the defendants, a collection of manufacturers including du Pont and Atlantic Richfield, received a decision from the Superior Court of California forbidding the use of contingent fees by the public entities in the public nuisance case against the one-time manufacturers of lead-based painting products.

At the time, the ruling was based on a decision reached in a 1985 case (People ex rel. Clancy v. Superior Court) involving a private attorney retained by city government officials through a contingent fee arrangement. The court ruled that outside counsel must not be retained through contingent fee arrangements because it violates the neutrality of the attorney representing the government agency.

However, In April 2008, the Sixth Appellate District Court of Appeals ruled that the public entities bringing suit could retain their contingency fee agreements. The court of appeals ruled that the public entities in the Santa Clara case held decision making authority. The counsels engaged in this case are strictly subordinate to the government attorneys and thus, the neutrality issue does not apply. Also, unlike the original 1985 ruling, the public entities of Santa Clara are engaging more than one outside legal representative.

Naturally, the defendants in this case have requested a ruling from the California Supreme Court on this issue. So far, the California Supreme Court has ruled in this matter, and the case remains open.