Contingency-ish - Climate Litigation Watch


Information in the public domain has in recent years revealed that fiduciaries of the public fisc have been granting a law firm extremely lucrative “contingency fee” (or contingency-ish) contracts to file “climate” lawsuits on behalf of governmental subdivisions—even though the firm is shown in FOIA’d emails and IRS filings to be the recipient of what is now millions of dollars each year to file governmental climate suits.

With a joint congressional and now at least one state legislative inquiry having been launched into this curiosity, the fee question is requiring a little more effort and creativity.

Massachusetts’s AG recently brought Sher Edling, LLP into its longrunning “climate” pursuit of ExxonMobil. These are the relevant records the Commonwealth’s AG has been willing to release, with the pertinent language below.

This is an unusual contingency agreement. Of course, all of them in this realm are unusual in light of the knowledge the public now possesses from various transparency-forcing records requests. And like all such agreements that came before it (particularly after said knowledge of third-party funding became public), it has ethical and public policy implications. 

CLW, certain that this was not just agreed on a whim, posts this for consideration, leaving the propriety of the arrangement to the legal experts to sort out whether this agreement comports with Massachusetts public policy and with the ethical rules that govern the attorneys who practice in the Bay State.

UPDATE: Documents recently obtained show that the City of Chicago is also a party to a “contingency” fee agreement. The pact reflects no disclosure/consent of third party funding. Things could get interesting if, assuming for these purposes things got that far, the firm also sought its expenses from the City.

Putting aside the indications the firm is already being paid millions to pursue these suits, another interesting aspect of the agreement is language relating to non-monetary relief, so Chicago and its lawyers may be seeking even more creative ways to enrich the legal profession.