Government Attorneys Manipulate ‘Public Nuisance’ Laws to Benefit Allies and Target Opponents

A fascinating legal trend has gained momentum in recent years: From Baltimore to Tulsa, government attorneys have been partnering with private law firms, suing big pharmaceutical companies for causing the opioid epidemic, and obtaining massive amounts of money in judgments and settlements.

I’m no fan of Big Pharma, and my family has personally suffered from the mass prescribing of opioids, so I’m inclined to be sympathetic. But putting aside the particulars of the opioid issue, this wave of lawsuits reveals two emerging legal trends that should put us on high alert: the novel misuse of the cause of action called “public nuisance” and the hiring of private attorneys by government agencies.

The Twisting of Public Nuisance Doctrine

A public nuisance was traditionally defined as “an unreasonable interference with a right common to the general public.” For most of Anglo-American legal history, its use was quite limited: a suit for public nuisance could prevent someone from, for example, blocking a public roadway, redirecting a public water source, or releasing noxious fumes into the air. Notice how the examples are consistent with the definition: The public has a right to use roads, share public water, and breathe air.

When those rights are interfered with, a public nuisance lawsuit can stop the interference. And if the public nuisance injures one person, in particular, more than the general public — such as the person who lived next door to the toxic fumes and was made sick by them — the person could also seek monetary damages.

In the proper context, public nuisance lawsuits make sense. Some actions create public interference with the use of property. Giving private people and governments the ability to go to court to stop a nuisance affecting the public use of air, water, or roads makes sense.

But in recent years, the public nuisance doctrine has been stretched by experimental uses in two novel ways: lawsuits against manufacturers of opioids and climate lawsuits against energy companies. This is a problematic twisting of the public nuisance doctrine. Have opioids caused terrible harm to the nation? Absolutely. Are there people within big pharmaceutical companies who knew about the dangers and concealed them to make a profit? That seems undeniable at this point.

But there are already legal remedies for this. The government can indict and prosecute the fraudsters. Individuals wrongfully harmed by opioid companies can file lawsuits. And if there are enough victims, they can file a class-action suit. But to reclassify the selling of a product — whether it be prescription drugs or oil — as a public nuisance is to mar the legal doctrine beyond recognition.

Public nuisance requires a private action that interferes with a public right. Air. Water. Roadways. Selling products that may be dangerous is categorically different from creating a public nuisance. What public right is being interfered with? What precisely is the harm caused to the public? When the answers are not clear and concrete but vague and nebulous, we have left the solid ground of legitimate public nuisance law.

Government Attorneys: Seekers of ‘Justice Alone’

A second disturbing and related problem with the current state of these public nuisance lawsuits is the fact that government agencies often hire private attorneys to handle the cases. To understand why this is so troublesome, it is worth reflecting on the role and the ideal of the public lawyer.

In 1940, Justice Robert Jackson — then attorney general of the United States — gave an address to federal prosecutors that all lawyers, especially government lawyers, should know well. Jackson knew the immense power that prosecutors possess over the people. He warned them strictly of their responsibility and reminded them of the uniqueness of their role: “Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just. Although the government technically loses its case, it has really won if justice has been done.”

The last sentence makes a point that is often forgotten: The prosecutor, indeed any attorney who works for the government, does not have an individual or organization as a client; the people are his client. Therefore, he must seek justice rather than victory and serve “the law and not factional purposes.”

During my time as a government attorney, I was always keenly aware of this reality. I represented the people of the county and the laws of the Commonwealth of Pennsylvania. In the highest sense, my role was to seek the just answer, not the government’s victory against the defendants. Sometimes it was a victory when I decided to drop a case or when I tried a case and lost — because justice was done.

Every litigator who represents the government must be ever aware of the power he possesses. He must know the distinctly different role he plays compared to private attorneys, who rightfully seek victories and monetary awards. The government attorney must be a noble figure, a seeker of justice alone.

What happens when government attorneys stray from this ideal? There is great danger when a lawyer invested with the power of the government seeks anything other than justice and the common good. Government lawyers have great power, including the power to have citizens arrested and indicted. Nothing but truth and justice should motivate their work.

In the current public nuisance cases, which are usually brought by state attorneys general, the introduction of private lawyers who work for contingency fees perverts the entire process. There is a grave problem when attorneys seeking large payouts are introduced into the equation of lawsuits brought by government agencies.

The dynamic of lawsuits filed by a state attorney general’s office is generally focused on and limited by specific purposes and goals. The attorney general represents the people of the state, so in the case of an opioid suit the goal would be 1) to stop the nuisance of opioids being inappropriately prescribed and flooding the streets and 2) perhaps to obtain monetary damages to go toward specific projects, such as rehabilitation facilities.

Remember that individuals who were harmed by opioids have their own ability to file personal injury lawsuits; public nuisance lawsuits are not the proper avenue to compensate those who were harmed individually. Therefore, these lawsuits should be distinct from personal injury lawsuits where the plaintiff understandably seeks as much money as possible to make him whole. This should not be the goal of a suit brought by the government.

State attorney general offices may genuinely want to use these public nuisance lawsuits as a vehicle to promote the common good. They may also want to improperly use these suits to bypass the legislature and use the courts to shape policy on contentious topics. But either way, these attorney general offices have limited resources. Enter the private attorney arrangement.

Private Attorneys: Profit and the Perversion of Justice

The government agencies don’t have to pay anything upfront for the additional legal services; the government gets the benefit of extra lawyers for the cause without expending anything from the budget. This introduction of private lawyers who receive a portion of the settlement/award as their fee completely changes the dynamic of these suits.

The state attorney general and his assistants may gain political power and prestige from successful public nuisance lawsuits against groups like Big Pharma and Big Oil. But they do not receive any extra money. Therefore, the lawsuits have natural limits: The government has an interest in stopping the supposed nuisance, in punishing the “bad guys,” and perhaps in receiving funds into the public purse to remedy the harm done.

But when you introduce private law firms — especially those working for a contingency fee — you now have a state-sponsored lawsuit motivated not by the common good alone but by getting paid. The result may be prolonged litigation, rejected settlements, and even the filing of frivolous additional lawsuits that do not promote the public good but ensure additional settlement dollars for the law firms involved.

One additional note regarding the problem of these private lawyers in public actions. These private attorneys are not simply good, qualified, neutral private lawyers hired through a bidding process or a good-faith search. There are many examples of government authorities hiring their friends, family members, and political allies to partner with the government and take these cases.

Politicians are able to give their lawyer friends cases that are almost guaranteed to generate millions of dollars, quite a nice political favor. Perhaps even worse than the run-of-the-mill political corruption are cases where the lawyers are being offered and paid for up front by ideological billionaires like Mike Bloomberg.

It is hard to fight against this legal novelty until we change the optics. Read the headlines, and it simply looks like state governments are fighting Big Pharma and Big Oil for spreading addiction and polluting the environment. Worthy causes. Good government punishing the rich bad guys. But a closer look shows an abuse of the legal process, the unacceptable commingling of private attorneys with public lawsuits, and of course the passing of millions of dollars between friends and political allies.

If government attorneys want to take on public problems, from opioids to pollution, that’s fine. They can do that by arresting and suing those involved. There is no need to stretch and pervert the public nuisance doctrine to accomplish this. And there is certainly no reason for the public to allow these government attorneys to bring in their friends from the private sector to join this supposed public service and cash in.