Metropolitan News-Enterprise


Thursday, March 25, 2010


Page 1


S.C. Leaves Standing Ruling on City and Contingency Fee Counsel

Justices Decline to Review Challenge to Anaheim’s Use of Firms in Tax Assessment Proceedings


By STEVEN M. ELLIS, Staff Writer


The California Supreme Court yesterday left standing a Court of Appeal ruling allowing outside counsel to assist government lawyers in ordinary civil litigation on a contingency fee basis.

The justices, at their weekly conference in San Francisco, denied review of a Jan. 5 ruling by Div. Three of the Fourth District Court of Appeal. The panel held that a Supreme Court decision barring a contingency fee lawyer from trying public nuisance actions as a city attorney did not bar assistance in tax assessment proceedings. and other online travel booking companies had sought to compel the City of Anaheim to litigate tax assessment proceedings without outside counsel retained under contingency fee agreements after the city in 2007 told the companies they were liable for failing to collect and remit local hotel taxes.

Beverly Hills Firm

The city did so through Beverly Hills firm Kiesel, Boucher & Larson, and the companies—upon learning that the firm and others represented the city on a contingency basis—objected that the fee arrangements violated a government lawyer’s duty of neutrality, as set forth in People ex rel. Clancy v. Superior Court (1985) 39 Cal.3d 740.

Under the agreements, the firms were retained as special counsel under the direction of Anaheim’s city attorney, and were to receive 30 percent of funds recovered “by settlement, arbitration award, Court judgment or otherwise.”

Request Rejected

Orange Superior Court Judge Ronald L. Bauer, however, denied the companies’ request, and the Fourth District affirmed in an opinion by Justice Raymond J. Ikola, who said that a tax assessment proceeding was a civil administrative action that did not require “the delicate weighing of values” described in Clancy.

He explained:

Clancy grants that ‘there are cases in which a government may hire an attorney on a contingent fee to try a civil case.’…But Clancy bars contingency fee lawyers from being the government’s representative in a vaguely defined ‘class of civil actions’…that require ‘a balancing of interests’ and ‘a delicate weighing of values’….

“The only California appellate case applying this restriction is Clancy itself, which barred a contingency fee lawyer from trying public nuisance actions as the city attorney. Clancy does not bar contingency fee lawyers from assisting government lawyers as co-counsel in ordinary civil litigation.”

Ikola was joined in his ruling by Justices William F. Rylaarsdam and Richard D. Fybel.

The case is Incorporated v. City of Anaheim, S179074.

In other conference action, the justices:

•Declined a request to review an unpublished decision by the Fourth District’s Div. Two reversing the conviction of a former Mt. San Jacinto Community College student whose comment about killing children on a news website prompted the school to lock down its preschool facilities.

The panel said that I Am the Beast Sssotlohiefmjn—who legally changed his name from Edmond Frank MacGillivray Jr. in 1988—could not be convicted for misdemeanor annoyance by means of an electronic communications device because Penal Code Sec. 653m(a) requires the communication be directed to a particular person.

Sssotlohiefmjn’s new surname stands for “Six six six of the Lord of Hosts in Edmond Frank MacGillivray Jr. now,” and he testified that he suffers from bipolar schizoaffective disease.

•Denied Los Angeles attorney Barry Orlyn’s petition for review of a 2008 State Bar Court recommendation that he be actually suspended for at least two years for unilaterally applying money recovered on a judgment he secured for a client to pay himself for the client’s overdue bills.

Writing for the State Bar Court, Judge Donald F. Miles observed that, “[w]hen dealing with a client, ‘self-help’ by an attorney is not synonymous with ‘help yourself.’ ” However, he rejected the State Bar’s calls for Orlyn to be disbarred.


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