Public Entities May Retain Private Counsel on Contingency-Fee Basis to Prosecute Civil Nuisance Actions

In County of Santa Clara v. Superior Court, published July 26, 2010, the California Supreme Court retreated from a broad holding in a previous case, and held that public entities can retain private counsel on a contingency-fee basis to prosecute civil suits to abate nuisances.  Recognizing the potential conflict of interest, the Court imposed limits on such representations.  Public entity attorneys must supervise the private attorneys, and retain complete control over the private attorneys' actions.  The contingency fee agreements must provide for that control.  And the prosecutions must not involve fundamental constitutional rights, such as free speech.