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and possibly a brief table of special laws by titles and subjects. This would not require the preparation of a large index and would be a matter of not more than a dozen pages, in any event. Without some table of this sort, there would not be much advantage in distributing the volume.
Virgil K. Kellogg, of Watertown:
As I understand it, both volumes of the Session Laws contain some index. You can readily turn to either volume for whatever you want, whether the first volume or the second volume. I think if the members of the Association will recall the conditions as they exist in those Session Laws, they will recognize that to be the fact. I would simply suggest that when the first volume comes out it should contain the usual index of that volume, and be complete in itself; when the second volume comes out, the usual index should follow the second volume. That will result in no more work or any confusion.
The question is on Mr. Wadhams' motion.
Andrew J. Nellis, of Albany:
Mr. President, why could not a complete index of all the Session Laws be issued with the first volume, so that we might know what was likely to be contained in the succeeding volumes?
I do not think that is feasible.
The question is still upon Mr. Wadhams' motion, that the recommendation for an index with each volume be disapproved.
William A. Purrington, of New York:
Mr. President, I would move an amendment to Mr. Wadhams' motion, in line with what has just been said, that a temporary index be not published, but in lieu thereof a table of contents reciting the titles of the acts and the laws repealed.
I will accept that.
The question now is upon Mr. Wadhams' motion, as amended upon motion of Mr. Purrington, that the general index be not published with each volume, but that each volume have a table of contents stating the titles of the acts and the acts that are repealed or amended. Are you ready for the question upon the motion as so amended?
The motion was duly carried.
We will now proceed to the report of the Committee on Contingent Fees.
John Brooks Leavitt, of New York, read the report of the committee as follows:
REPORT OF COMMITTEE ON ABUSES OF THE CONTINGENT FEE
To the Bar Association of the State of New York:
The Committee on the Abuses of the Contingent Fee respectfully begs to submit its fifth annual report,
The apathy of the profession upon this subject, to which allusion was made in its last report, still continues. There
are some two score and more Bar Associations within our State. So far as your Committee is advised, less than a half dozen of them have considered the subject, although invited to co-operate with this Committee in submitting to the Legislature some appropriate bill by which the admitted abuses of the contingent fee may be checked. The phrase, "admitted abuses," is used, for, that although your Co.mittee's recital of those abuses in its first report, has been before the profession for four years, its truth has not been challenged by a single lawyer from Montauk to Buffalo.
Your Committee recommended in that report a certain amendment of section 66 of the Code (now §§ 474 and 475 of chap. 30 of the Consolidated Laws). It was itself a compromise between various opposing views, its main object being to attempt to re-incarnate the supervisory power of the Court over contracts between attorney and client, which power has never been abrogated, but which at times seems to have suffered an eclipse. The younger members of the Bar would appear to have no idea that the Court has any supervisory power over their contracts with their clients. In fact, when your Committee's bill was first presented to the Legislature, members of the Judiciary Committee of the Assembly talked of it as an invasion of the constitutional right of an attorney to contract with his client.
The root of the trouble is, that the Legislature, in 1848, went entirely too far in abrogating the rule of quantum meruit, and in allowing an unrestrained right of contract between attorney and client. As your Committee pointed out in its first report, there had arisen a necessity for legislation to provide for cases where the client was unable to compensate the attorney in any other way than out of the recovery. Had the Legislature stayed its repealing hand
to meet that necessity, it would have done all that was needful, and many of the evils now existing might not have been. If that is so, it would seem that the right thing to do is to obliterate what the Legislature of 1848 needlessly did, restore the rule of quantum meruit as the general measure of the value of such services, and restrict the right of express contract to two cases only: (1) where the client desires to retain his lawyer by the year, (2) where he is unable to compensate his lawyer except out of the recovery.
For these reasons your Committee proposes the following resolution for discussion at the coming annual meeting:
Resolved, That it is the opinion of the Association of the Bar of the State of New York that the experience of the profession during the sixty odd years since the legislation of 1848, has proved that in giving unrestricted permission for attorneys to bargain with their clients in respect of their services, the Legislature went too far, and that its enactment should be repealed, and the rule of quantum meruit restored; provided, however, that permission be given to clients (1) to hire their attorneys at a yearly compensation, if they desire to do so, and (2) that where a client is unable to compensate his attorney for professional services in a contemplated litigation, he shall be permitted to pay his attorney out of the proceeds of the litigation such sum as they may agree upon after collection, in view of the services, of the contingency of nonpayment, and of the amount collected; and in case of their failure to agree, such sum as the Court shall award.
It is not the purpose of your Committee to submit argument in support of that resolution except in oral debate
upon the floor. It is hoped that it will provoke discussion and thereby stimulate interest so that this inportant subject may be seriously taken up and dealt with in a manner which will vindicate our profession from the aspersions which are heaped upon it, not only by reason of the commission of the offenses, but also of our omission to take any steps to stop them.
Dated December 30, 1911.
JOHN BROOKS LEAVITT, First District,
(Member deceased), Second District.
W. P. GOODELLE, Fifth District.
GEORGE HERBERT SMITH, Seventh District.
The report does not commend itself to my judgment, nor am I in favor of the presentation of a resolution simply for the purpose of provoking a debate. It is evident that the Bar is not ready seriously to consider the abuses of the contingent fees, and agitation of the subject with no purpose other than agitation seems a waste of time and energy. A wiser course will be to wait for the development of loftier ethical standards which only can be attained by the slow process of elevating professional standards and ideals. To press the matter in season and out of season is to make the subject wearisome and the Association ridiculous. Great questions, such as the abolition of human