EAST ST. LOUIS – Monsanto, Solutia, and Pharmacia allegedly improperly changed a civil case into a criminal case so they could move to disqualify attorneys for East St. Louis in a pollution action at U.S. district court, the city’s attorneys argued on June 5.
Matthew Limoli of North Carolina wrote, “When Monsanto removed the city’s ordinance violation actions to this court on March 1, 2021, its notice of removal stated unequivocally that they are civil actions.”
“Monsanto had to make those representations to make removal proper, because the three statutes it relied upon for removal apply only to civil cases,” he wrote.
“Now it tells the court the ordinance violations are criminal actions and in fact, that requires the court to take the drastic step of disqualifying the city’s chosen counsel and staying this matter indefinitely,” he added.
Limoli claimed District Judge David Dugan should remand the case to St. Clair County where it started, so a judge there could resolve the disqualification motion.
Former St. Clair County chief judge John Baricevic represents East St. Louis as general counsel and as counsel through a contingency fee agreement on the pollution action.
The agreement also covers his partner Grey Chatham, Limoli, John Driscoll of Puerto Rico, Paul Johnson and Christopher Quinn of St. Louis, Melissa Sims of New York State, and Roy Mason and Zachary Howerton of Maryland.
On May 22, defense counsel Charles Hobbs of St. Louis County moved to disqualify them all.
He claimed representation of government by private attorneys requires neutrality safeguards.
“There are no neutrality safeguards in this litigation,” he wrote.
Hobbs attached the fee agreement showing lawyers will receive 40% of any recovery and 45% if anyone appeals, plus reimbursement of 18 kinds of expenses.
He claimed lawyers conceived the litigation and designed it to “provide as much pecuniary benefit to the contingency fee lawyers as possible, all in the name of government.”
He added that they made sure there could be no resolution of the litigation unless the lawyers extract sufficient payment.
Hobbs claimed contingency fees are prohibited in pursuit of criminal penalties, stating ordinance violations are misdemeanors with sentences up to six months.
He claimed cities and states permit contingency fees in civil public nuisance cases, but a government lawyer with no interest in the outcome must retain complete control.
He also claimed East St. Louis relinquished control.
Hobbs requested a stay until Dugan could address the due process violation.
Limoli’s response combined his objection to changing the case into a criminal case with a defense of the contingency fee agreement.
“There is no basis to disqualify the city’s attorneys because there is nothing improper about their contingent fee agreement,” he wrote.
“Moreover, disqualifying the city’s contingent fee counsel effectively would prevent it from enforcing its rights because it otherwise cannot afford to bring this action,” he added.
“The U.S. Supreme Court affirmed unanimously that prosecutors need not be entirely neutral and detached,” Limoli continued.
“Zealous prosecution does not violate the constitution,” he wrote.
Limoli claimed requiring public officials to micro manage private counsel would be difficult to apply and could raise thorny issues of privilege.
“The legal system would cease to function efficiently if the person with ultimate control over a case was required not only to oversee and approve all the actions taken in the matter, but also take part in every minute detail of those actions,” he wrote.
Limoli stated that the city and its private attorneys entered into a contingent fee contract in 2020.
He quoted a provision that settlement decisions were reserved to the city’s discretion.
He also quoted a provision that the city would retain complete control and retain veto power.
He stated the city and its attorneys revised the agreement last year and “inadvertently omitted the language quoted above.”
Monsanto attached the contract to its motion.
“The city corrected the omission of the control language by entering a new agreement that restores it,” he wrote.