County of Santa Clara, Petitioners v. the Superior Court of Santa Clara County, Respondent; Atlantic…

Summary

The court held that public entities may retain private counsel on a contingent-fee basis to prosecute a public-nuisance-abatement action when neutral government attorneys retain control over the litigation and all critical discretionary decisions. It narrowed the categorical prohibition previously applied to contingent-fee arrangements in public-nuisance cases because this action involved past conduct, no ongoing business or liberty interests, and no possibility of criminal liability. The court nevertheless reversed and remanded because the agreements in the record lacked required provisions safeguarding government control. Werdegar, J., concurring, agreed that the categorical prohibition should be narrowed but questioned whether contingent fees tied to abatement value could impair independent supervision and emphasized the defendants' delayed challenge.