A private attorney general or public interest lawyer is an informal term originating in

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

jurisdictions for a private attorney who brings a

lawsuit A lawsuit is a proceeding by one or more parties (the plaintiff or claimant) against one or more parties (the defendant) in a civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today ...

claiming it to be in the

public interest In social science and economics, public interest is "the welfare or well-being of the general public" and society. While it has earlier philosophical roots and is considered to be at the core of democratic theories of government, often paired ...

, i.e., benefiting the general public and not just the

plaintiff A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the ...

, on behalf of a citizen or group of citizens. The attorney may, at the equitable discretion of the court, be entitled to recover

attorney's fee Attorney's fee is a chiefly United States term for compensation for legal services performed by an Lawyer, attorney (lawyer or law firm) for a client, in or out of court. Fees may be an hourly, flat-rate or contingent fee. Recent studies suggest ...

s if they prevail. The rationale behind this principle is to provide extra incentive to private attorneys to pursue suits that may be of benefit to society at large. Private attorney general suits are commonly, though not always, brought as

class action A class action is a form of lawsuit. Class Action may also refer to: * ''Class Action'' (film), 1991, starring Gene Hackman and Mary Elizabeth Mastrantonio * Class Action (band), a garage house band * "Class Action" (''Teenage Robot''), a 2002 e ...

s in jurisdictions that permit the certification of class action lawsuits.

Origin

Historically in English

, a

writ In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrant (legal), Warrants, prerogative writs, subpoenas, and ''certiorari'' are commo ...

of qui tam was a writ through which private individuals who assist a

prosecution A prosecutor is a legal representative of the prosecution in states with either the adversarial system, which is adopted in common law, or inquisitorial system, which is adopted in Civil law (legal system), civil law. The prosecution is the ...

can receive for themselves all or part of the damages or financial penalties recovered by the government as a result of the prosecution. Its name is an abbreviation of the

Latin Latin ( or ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken by the Latins (Italic tribe), Latins in Latium (now known as Lazio), the lower Tiber area aroun ...

phrase ''qui tam pro domino rege quam pro se ipso in hac parte sequitur'', meaning " ewho sues in this matter for the king as well as for himself." While the writ fell into disuse in

England and Wales England and Wales () is one of the Law of the United Kingdom#Legal jurisdictions, three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. Th ...

following the

Common Informers Act 1951 The Common Informers Act 1951 (14 & 15 Geo. 6. c. 39) is an Act of Parliament (United Kingdom), act of the United Kingdom Parliament that abolishes the principle of, and procedures concerning a common informer. Background A common informer w ...

, it remains current in the

United States The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 U.S. state, states and a federal capital district, Washington, D.C. The 48 ...

under the

False Claims Act False or falsehood may refer to: * False (logic), the negation of truth in classical logic * Lie or falsehood, a type of deception in the form of an untruthful statement * False statement, aka a falsehood, falsity, misstatement or untruth, is a st ...

, ''et seq.'', which allows a private individual, or "

whistleblower Whistleblowing (also whistle-blowing or whistle blowing) is the activity of a person, often an employee, revealing information about activity within a private or public organization that is deemed illegal, immoral, illicit, unsafe, unethical or ...

" (or relator), with knowledge of past or present

fraud In law, fraud is intent (law), intentional deception to deprive a victim of a legal right or to gain from a victim unlawfully or unfairly. Fraud can violate Civil law (common law), civil law (e.g., a fraud victim may sue the fraud perpetrato ...

committed against the

federal government A federation (also called a federal state) is an entity characterized by a political union, union of partially federated state, self-governing provinces, states, or other regions under a #Federal governments, federal government (federalism) ...

to bring suit on its behalf. This allowance and, in some cases, reliance on private individual litigation to enforce the law has also been referred to as a "''bounty''" system due to the private citizen's potential financial gain if the suit is successful. There are also ''qui tam'' provisions in regarding arming vessels against friendly nations; regarding violating Indian protection laws; regarding the removal of undersea treasure from the Florida coast to foreign nations; and regarding false marking. However, in February 2011, the ''qui tam'' provision regarding false marking was held to be unconstitutional by a U.S. District Court, and, in September of that year, the enactment of the

Leahy–Smith America Invents Act The Leahy–Smith America Invents Act (AIA) is a United States federal statute that was passed by Congress and signed into law by President Barack Obama on September 16, 2011. The law represents the most significant legislative change to the U ...

effectively removed ''qui tam'' remedies from § 292. Contemporary private attorney general lawsuits are an outgrowth of the rationale underlying the writ of qui tam that enabling private citizens to enforce the law will strengthen enforcement and contribute to the

rule of law The essence of the rule of law is that all people and institutions within a Body politic, political body are subject to the same laws. This concept is sometimes stated simply as "no one is above the law" or "all are equal before the law". Acco ...

India

Non-governmental organisations A non-governmental organization (NGO) is an independent, typically nonprofit organization that operates outside government control, though it may get a significant percentage of its funding from government or corporate sources. NGOs often focus ...

and activists in India acting as private attorneys general routinely undertake litigation to secure public interest and demonstrates the availability of justice to socially-disadvantaged parties and was introduced by Justice P. N. Bhagwati. Traditionally, Indian courts applied the English doctrine of ''locus standi'', permitting litigation only from parties affected directly or indirectly by the defendant. However, by the end of the twentieth century, the

Supreme Court In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, high (or final) court of appeal, and court of final appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of ...

and the country's various high courts began permitting cases on the grounds of public interest litigation, permitting

civil society Civil society can be understood as the "third sector" of society, distinct from government and business, and including the family and the private sphere.Indian tort law of

absolute liability Absolute liability is a standard of legal liability found in tort and criminal law of various legal jurisdictions. To be convicted of an ordinary crime, in certain jurisdictions, a person must not only have committed a criminal action but also ...

for enterprises engaging in hazardous activities that subsequently caused harm to any individual or community or to their property under the rule in M. C. Mehta v. Union of India.

Historical cases

One of the earliest public interest litigation was filed by G. Vasantha Pai who filed a case in the

Madras High Court The High Court of Judicature at Madras is a High Courts of India, High Court located in Chennai, India. It has appellate jurisdiction over the state of Tamil Nadu and the union territory of Puducherry (union territory), Puducherry. It is one of ...

against the then sitting Chief Justice of the Madras High court S. Ramachandra Iyer after it was found the judge had forged his date of birth to avoid compulsory retirement at the age of 60 and his younger brother sent invitations to celebrate his 60th birthday and Pai found evidence after photographing his original birth register which showed his real age.Ramachandra Iyer resigned on a request from the then

Chief Justice of India The chief justice of India (CJI) is the chief judge of the Supreme Court of India and the highest-ranking officer of the Indian judiciary. The Constitution of India grants power to the President of India to appoint, as recommended by the outg ...

P. B. Gajendragadkar as the case would damage the judiciary and he resigned before the case came up for hearing this led the case to be dismissed as he had resigned. In December 1979, Kapila Hingorani filed a petition in regards to the condition of the prisoners detained in the Bihar jail, whose suits were pending in court. The petition was signed by prisoners of the Bihar jail and the case was filed in the

Supreme Court of India The Supreme Court of India is the supreme judiciary of India, judicial authority and the supreme court, highest court of the Republic of India. It is the final Appellate court, court of appeal for all civil and criminal cases in India. It also ...

before the bench headed by Justice P. N. Bhagwati. The petition was filed under the name of a prisoner, Hussainara Khatoon, and the case was therefore named ''Hussainara Khatoon Vs State of Bihar''. The Supreme Court decided that prisoners should receive free legal aid and fast hearings. As a result, 40,000 prisoners were released from jail. Thereafter many similar cases have been registered in the Supreme Court. It was in the case of ''SP Gupta vs Union of India'' that the Supreme Court of India defined the term "public interest litigation" in the Indian context. In Vishaka v State of Rajasthan, the plaintiff fought against sexual harassment in the workplace and was filed by Bhanwari Devi, who, after trying to stop the marriage of a one-year-old girl in rural Rajasthan, was raped by five men. She faced numerous problems when she (Devi) attempted to seek justice. Naina Kapoor decided to initiate a PIL to challenge sexual harassment at workplace in the Supreme Courts. The judgement of the case recognised sexual harassment as a violation of the fundamental constitutional rights of Articles 14, 15, and 21. The guidelines also directed for sexual harassment prevention.

United States

In the United States, 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 1964 The Civil Rights Act of 1964 () is a landmark civil rights and United States labor law, labor law in the United States that outlaws discrimination based on Race (human categorization), race, Person of color, color, religion, sex, and nationa ...

, the

United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that turn on question ...

ruled that "A public accommodations suit is thus private in form only. When a plaintiff brings an action … he cannot recover

damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognized at ...

. If he obtains an

injunction An injunction is an equitable remedy in the form of a special court order compelling a party to do or refrain from doing certain acts. It was developed by the English courts of equity but its origins go back to Roman law and the equitable rem ...

, 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 The United States Congress is the legislature, legislative branch of the federal government of the United States. It is a Bicameralism, bicameral legislature, including a Lower house, lower body, the United States House of Representatives, ...

has also passed laws with "private attorney general" provisions that provide for the enforcement of laws prohibiting

employment discrimination Employment discrimination is a form of illegal discrimination in the workplace based on legally protected characteristics. In the U.S., federal anti-discrimination law prohibits discrimination by employers against employees based on age, race, ...

police brutality Police brutality is the excessive and unwarranted use of force by law enforcement against an individual or Public order policing, a group. It is an extreme form of police misconduct and is a civil rights violation. Police brutality includes, b ...

, and

water pollution Water pollution (or aquatic pollution) is the contamination of Body of water, water bodies, with a negative impact on their uses. It is usually a result of human activities. Water bodies include lakes, rivers, oceans, aquifers, reservoirs and ...

. Under the

Clean Water Act The Clean Water Act (CWA) is the primary federal law in the United States governing water pollution. Its objective is to restore and maintain the chemical, physical, and biological integrity of the nation's waters; recognizing the primary respo ...

, for example, "any citizen" may bring suit against an individual or a company that is a source of

. Another example of the "private attorney general" provisions is the

Racketeer Influenced and Corrupt Organizations Act The Racketeer Influenced and Corrupt Organizations (RICO) Act 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 was e ...

(RICO). RICO allows average citizens (private attorneys general) to sue organisations 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. President Clinton sought to find common ground between liberals who support stronger enforcement of civil rights and

consumer protection Consumer protection is the practice of safeguarding buyers of goods and services, and the public, against unfair practices in the marketplace. Consumer protection measures are often established by law. Such laws are intended to prevent business ...

law and conservatives sceptical of expensive government regulation, stating in his second State of the Union Address "That it was time for the American People to be given more power while the Federal Government down sizes" One approach to compromise that rose to prominence was providing for private citizens to act as "private attorneys general" for the enforcement of civil rights law, thereby delegating both the task and the financial burden of regulation to

civil society Civil society can be understood as the "third sector" of society, distinct from government and business, and including the family and the private sphere.environmental activism The environmental movement (sometimes referred to as the ecology movement) is a social movement that aims to protect the natural world from harmful environmental practices in order to create sustainable living. In its recognition of humanity a ...

and the enforcement of civil rights legislation protecting racial and ethnic minorities, where the role of private lawyers and organisations has generally been welcomed by federal authorities. For instance, in the case "Chester Residents Concerned for Quality Living v Seif", the federal government filed an

amicus brief An amicus curiae (; ) is an individual or organization that is not a party to a legal case, but that is permitted to assist a court by offering information, expertise, or insight that has a bearing on the issues in the case. Whether an ''amic ...

arguing that the regulations of Title VI of the Civil Rights Act of 1964 can be enforced by private attorneys general Correspondingly, the

has determined that Congress intended several civil rights statutes to be enforceable by private parties The U.S. Congress codified the private attorney general principle into law with the enactment of Civil Rights Attorney's Fees Award Act of 1976, . The Senate Report on this statute stated that The Senate Committee on the Judiciary wanted to level the playing field so that private

citizen Citizenship is a membership and allegiance to a sovereign state. Though citizenship is often conflated with nationality in today's English-speaking world, international law does not usually use the term ''citizenship'' to refer to nationality ...

s, 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, " 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. While there is such a thing as a private attorney general act in the United States, it should be stated that there is no such thing as a private non-attorney citizen being a "private attorney general" for all purposes. The term applies only to the exercise of one's ability to pursue certain specific kinds of legal actions which are statutorily authorized. It does not create the ability to call one's self a "private attorney general".

Criticism

In the area of product liability and consumer protection law, advocates of tort reform criticise private attorney general suits as attempts at regulation through litigation, the idea that litigation is being used to achieve regulatory ends that advocates would not be able to achieve through the democratic process. Private attorney general suits in America are frequently criticised as examples of regulation through litigation. Similarly, public interest litigation in India has been criticised for undermining

parliamentary sovereignty Parliamentary sovereignty, also called parliamentary supremacy or legislative supremacy, is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over al ...

and enabling the court system to exert inordinate power over the legislative and executive branches of government. For instance, the emergence of constitutional torts has been criticised as an undemocratic example of

judicial activism Judicial activism is a judicial philosophy holding that courts can and should go beyond the applicable law to consider broader societal implications of their decisions. It is sometimes used as an antonym of judicial restraint. The term usually ...

. Controversy further arose when judges began to read such obligations of the state into Article 21 of the

Indian Constitution The Constitution of India is the supreme legal document of India, and the longest written national constitution in the world. The document lays down the framework that demarcates fundamental political code, structure, procedures, powers, and ...

.''Noor Mahmmad Usmanbhai Mansuri v State of Gujarat'' (1997) 1 GujLH 49
at 7/ref> However, opponents of tort reform assert that public interest litigation in India has served to secure "social and distributive justice." In

law and economics Law and economics, or economic analysis of law, is the application of microeconomic theory to the analysis of law. The field emerged in the United States during the early 1960s, primarily from the work of scholars from the Chicago school of econ ...

literature, there is consequently a debate as to whether liability and regulation are substitutes or complements and thus whether the enforcement of predictable regulation known to manufacturers in advance can adequately assure consumer safety while providing greater legal certainty for manufacturers than strict liability Another criticism of private attorney general suits in common law jurisdictions is that the availability of

discovery Discovery may refer to: * Discovery (observation), observing or finding something unknown * Discovery (fiction), a character's learning something unknown * Discovery (law), a process in courts of law relating to evidence Discovery, The Discovery ...

enables private attorneys general to impose costs on defendants in order to force settlements in unmeritorious cases to avoid the cost of discovery. Similarly, legal commentators in civil law jurisdictions argue that broad discovery in the hands of private parties is destructive of the

and amounts to "a private inquisition." Civil law countries see the underlying objectives of discovery as properly monopolised by the state in order to maintain the rule of law: the investigative objective of discovery is the prerogative of the

executive branch The executive branch is the part of government which executes or enforces the law. Function The scope of executive power varies greatly depending on the political context in which it emerges, and it can change over time in a given country. In ...

, and insofar as discovery may be able to facilitate the creation of new rights, that is the prerogative of the

legislative branch A legislature (, ) is a deliberative assembly with the authority, legal authority to make laws for a Polity, political entity such as a Sovereign state, country, nation or city on behalf of the people therein. They are often contrasted with th ...

. The principle underlying private attorney general lawsuits and the traditional writ of qui tam stands in contrast to the doctrine of

parens patriae ''Parens patriae'' is Latin for "father of the nation" (lit., "father of one's country"). 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 ...

, under which the government is best placed to protect citizens from harmful conduct in its capacity as the "parent of the nation".

Notes

References

{{Authority control Lawyers by type Legal ethics Civil procedure