Private attorney general
Encyclopedia
Private attorney general is an informal term usually used today in the United States to refer to a private party who brings a lawsuit
considered to be in the public interest
, i.e., benefiting the general public and not just the plaintiff
. The person considered "private attorney general" is entitled to recover attorney's fee
s if he or she prevails. The rationale behind this principle is to provide extra incentive to private citizens to pursue suits that may be of benefit to society at large.
, the United States Supreme Court ruled that "A public accommodations suit is thus private in form only. When a plaintiff brings an action . . . he cannot recover damages
. If he obtains an injunction
, he does so not for himself alone but also as a 'private attorney general,' vindicating a policy that Congress considered of the highest priority." The United States Congress
has also passed laws with "private attorney general" provisions that provide for the enforcement of laws prohibiting employment discrimination
, police brutality
, and water pollution
. Under the Clean Water Act
, for example, "any citizen" may bring suit against an individual or a company that is a source of water pollution
.
Another example of the "private attorney general" provisions is the Racketeer Influenced and Corrupt Organizations Act
(RICO). RICO allows average citizens (private attorneys general) to sue those organizations that commit mail and wire fraud as part of their criminal enterprise. To date, there are over 60 federal statutes that encourage private enforcement by allowing prevailing plaintiffs to collect attorney's fees.
Attorneys who function as a private attorney general do so without compensation. The statutes permitting a plaintiff to recover attorneys' fees have been held not to apply when the plaintiff is an attorney.
, . The Senate Report on this statute stated that The Senate Committee on the Judiciary wanted to level the playing field so that private citizens, who might have little or no money, could still serve as "private attorneys general" and afford to bring actions, even against state or local bodies, to enforce the civil rights laws. The Committee acknowledged that, "[i]f private citizens are to be able to assert their civil rights, and if those who violate the Nation's fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in court." Where a plaintiff wins his or her lawsuit and is considered the "prevailing party," § 1988 acts to shift fees, including expert witness fees [at least in certain types of civil rights actions, under the Civil Rights Act of 1991, even if not in § 1983 actions], and to make those who acted as private attorneys general whole again, thus encouraging the enforcement of the civil rights laws. The Senate reported that it intended fee awards to be "adequate to attract competent counsel" to represent client with civil rights grievances. S. Rep. No. 94-1011, p. 6 (1976). The U.S. Supreme Court has interpreted the act to provide for the payment of a "reasonable attorney's fee" based on the fair market value of the legal services.
from someone else, and also to any person who represents the public in any civil or criminal court proceeding. Most criminal prosecutions today in the United States and other countries in the Anglo-American legal tradition are conducted by public prosecutors who are public employees, but until the late 19th century most criminal prosecutions in the United States were conducted by private persons, usually but not always lawyers, either paid by private parties or asked by the court to serve pro bono. Private criminal prosecutions
are still legal in several of those countries, including several states of the United States.
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
considered to be in the public interest
Public interest
The public interest refers to the "common well-being" or "general welfare." The public interest is central to policy debates, politics, democracy and the nature of government itself...
, i.e., benefiting the general public and not just the plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
. The person considered "private attorney general" is entitled to recover attorney's fee
Attorney's fee
Attorney's fee is a chiefly United States term for compensation for legal services performed by an attorney for a client, in or out of court. It may be an hourly, flat-rate or contingent fee. Attorney fees are separate from fines, compensatory and punitive damages, and from court costs in a...
s if he or she prevails. The rationale behind this principle is to provide extra incentive to private citizens to pursue suits that may be of benefit to society at large.
Examples of application
Many civil rights statutes rely on private attorneys general for their enforcement. In Newman v. Piggie Park Enterprises, - one of the earliest cases construing the Civil Rights Act of 1964Civil Rights Act of 1964
The Civil Rights Act of 1964 was a landmark piece of legislation in the United States that outlawed major forms of discrimination against African Americans and women, including racial segregation...
, the United States Supreme Court ruled that "A public accommodations suit is thus private in form only. When a plaintiff brings an action . . . he cannot recover damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
. If he obtains an injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
, he does so not for himself alone but also as a 'private attorney general,' vindicating a policy that Congress considered of the highest priority." The United States Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
has also passed laws with "private attorney general" provisions that provide for the enforcement of laws prohibiting employment discrimination
Employment discrimination
Employment discrimination is discrimination in hiring, promotion, job assignment, termination, and compensation. It includes various types of harassment....
, police brutality
Police brutality
Police brutality is the intentional use of excessive force, usually physical, but potentially also in the form of verbal attacks and psychological intimidation, by a police officer....
, and water pollution
Water pollution
Water pollution is the contamination of water bodies . Water pollution occurs when pollutants are discharged directly or indirectly into water bodies without adequate treatment to remove harmful compounds....
. Under the Clean Water Act
Clean Water Act
The Clean Water Act is the primary federal law in the United States governing water pollution. Commonly abbreviated as the CWA, the act established the goals of eliminating releases of high amounts of toxic substances into water, eliminating additional water pollution by 1985, and ensuring that...
, for example, "any citizen" may bring suit against an individual or a company that is a source of water pollution
Water pollution
Water pollution is the contamination of water bodies . Water pollution occurs when pollutants are discharged directly or indirectly into water bodies without adequate treatment to remove harmful compounds....
.
Another example of the "private attorney general" provisions is the Racketeer Influenced and Corrupt Organizations Act
Racketeer Influenced and Corrupt Organizations Act
The Racketeer Influenced and Corrupt Organizations Act, commonly referred to as the RICO Act or simply RICO, is a United States federal law that provides for extended criminal penalties and a civil cause of action for acts performed as part of an ongoing criminal organization...
(RICO). RICO allows average citizens (private attorneys general) to sue those organizations that commit mail and wire fraud as part of their criminal enterprise. To date, there are over 60 federal statutes that encourage private enforcement by allowing prevailing plaintiffs to collect attorney's fees.
Attorneys who function as a private attorney general do so without compensation. The statutes permitting a plaintiff to recover attorneys' fees have been held not to apply when the plaintiff is an attorney.
Civil Rights Attorney's Fees Award Act
The U.S. Congress codified the private attorney general principle into law with the enactment of Civil Rights Attorney's Fees Award Act of 1976Civil Rights Attorney's Fees Award Act of 1976
The Civil Rights Attorney's Fees Award Act of 1976 is a law of the United States. It is often referred to as "Section 1988". It allows a Federal court to award reasonable attorneys' fees to a prevailing party in certain civil rights cases....
, . The Senate Report on this statute stated that The Senate Committee on the Judiciary wanted to level the playing field so that private citizens, who might have little or no money, could still serve as "private attorneys general" and afford to bring actions, even against state or local bodies, to enforce the civil rights laws. The Committee acknowledged that, "[i]f private citizens are to be able to assert their civil rights, and if those who violate the Nation's fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in court." Where a plaintiff wins his or her lawsuit and is considered the "prevailing party," § 1988 acts to shift fees, including expert witness fees [at least in certain types of civil rights actions, under the Civil Rights Act of 1991, even if not in § 1983 actions], and to make those who acted as private attorneys general whole again, thus encouraging the enforcement of the civil rights laws. The Senate reported that it intended fee awards to be "adequate to attract competent counsel" to represent client with civil rights grievances. S. Rep. No. 94-1011, p. 6 (1976). The U.S. Supreme Court has interpreted the act to provide for the payment of a "reasonable attorney's fee" based on the fair market value of the legal services.
Other uses
The term also refers more generally to any person who holds a general power of attorneyPower of attorney
A power of attorney or letter of attorney is a written authorization to represent or act on another's behalf in private affairs, business, or some other legal matter...
from someone else, and also to any person who represents the public in any civil or criminal court proceeding. Most criminal prosecutions today in the United States and other countries in the Anglo-American legal tradition are conducted by public prosecutors who are public employees, but until the late 19th century most criminal prosecutions in the United States were conducted by private persons, usually but not always lawyers, either paid by private parties or asked by the court to serve pro bono. Private criminal prosecutions
Private prosecution
A private prosecution is a criminal proceeding initiated by an individual or private organisation instead of by a public prosecutor who represents the state...
are still legal in several of those countries, including several states of the United States.
See also
- Qui tamQui tamIn common law, a writ of qui tam is a writ whereby a private individual who assists a prosecution can receive all or part of any penalty imposed...
, an analogous concept - Parens patriaeParens patriaeParens patriae is Latin for "parent of the nation." In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in need of protection...
, a roughly opposite concept