« PreviousContinue »
slavery, admit of unremitting agitation. Minor questions cannot thus be treated.
A. T. CLEARWATER,
January 8, 1912.
I would be entirely willing to concur in the body of the report, but do not find myself able to concur in submitting the proposed resolution, even for discussion. It seems to me that, as framed, the measure would repeal the Act of 1848 as to those contracts where it has not been productive of abuses, and in the one case where the abuses exist would leave the Act in force. As I interpret the resolution it permits a contract for the amount of compensation in case of contingent fees and gives the Court control only where the parties have failed to agree. This agreement might be made in contemplation of litigation and before the completion of the services and would apparently be binding.
If the resolution were so framed as to make the exception only as regards contingent fees where the agreement is reached after judgment and settlement I would concur. Even then I would prefer to have it subject to the scrutiny of the Court.
I am compelled to concur in the conclusion reached by Judge Clearwater, but upon other grounds and for different reasons, which I have not the time to formulate before the Annual Meeting. I must therefore content myself with recording my dissenting vote upon the proposed report regretting, however, that I cannot see my way clear to signing it.
SIMON FLEISCHMANN, Eighth District.
Mr. John Brooks Leavitt:
Mr. President, a rather interesting situation is disclosed by this report. It was the intention to have drawn the resolution so as to present the idea which Dean Irvine contends for, and the resolution, which I shall now offer for your discussion, is shaped to meet his views, and would no doubt receive his assent if he were present. I agree entirely with what Judge Clearwater says also, that this is an ethical question, and cannot well be agitated in season and out of season. I do not agree with him that a wiser course would be to wait for the development of loftier standards, which only can be attained by the slow process of elevating professional standards and ideals. While the process of elevation is going on in that way, the process of deterioration is going on much faster. When attorneys upon reversals of judgments in accident cases go around among the profession and say that they have been robbed by the Court, as I have heard them say more than once, and when an attorney is so wrapped up in a case, by reason of his pecuniary interest in its results, that he feels a sense of personal grievance against the Court upon a nonsuit or has the same sense of personal grievance against an appellate Court upon a reversal, where, in short, he is defeated as well as his client, I submit that the situation is pretty serious. We hear a great deal nowadays of attacks upon the Courts. the Courts. We lawyers are springing to the defense of the Courts, and while ready to admit that there are some specific abuses, we do not believe in wholesale harangues against the Courts. We must stand by the Courts. Take the new idea of recall of Judges, one of the most dangerous projects that has been advocated of late years. It is no remedy for admitted ills. At the very
time that in explaining his defeat to a client, and expressing an opinion that the Judge committed error, we should yet defend the Court and not asperse it. We do not ascribe a defeat to ignorance or injustice of a Judge. We may say we think he was in error, as we do and as it is our duty to do. But we need not make a personal attack upon the Judge, even in our confidential talk with our client as to an appeal. We ought to defend the man, even though we charge error on the Judge. This in any case, much more so where we have a personal interest. The contingent fee is sapping the relations between the Bench and the Bar. It is undermining them. I submit that the temptation of a lawyer in a contingency case to feel a personal animosity against a Court which decides against him is a most dangerous one. In offering this resolution, let me say that it does not represent the mind of the committee. It only expresses the concurrence of four out of eight. I do not offer it merely for the purpose of provoking debate. I do not entertain much hope of its adoption. It is offered for the purpose of insuring attentive consideration of the subject by this Association.
Resolved, That it is the opinion of the New York State Bar Association 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 to 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.
May I say a very few words in its support? The mischief which the legislation of 1848 was intended to remedy, was a mischief calling for legislation because of the increase of the number of accidents and injuries to persons, who are not in a condition to pay their attorneys for their services. That increase was due to the then coming in, of what we call, the machine age. Just connect those two if you please. The thirties in the last century witnessed the outbreak of railroads all over the country and the erection of large factories. Then was the beginning of the age of machinery. It was machines, in motion or stationary, that caused most of the accidents. The injuries were in most instances sustained by the very class in the community that could not afford to pay for their redress, the class whose controversies in the law had theretofore been of a very small amount, cases in Justices' Courts that only called for the services of young men without much experience. As you know, the great lawyers throughout the country got their first training in fighting cases before inferior Courts. It is in small Courts that small controversies between small people are usually settled. The machine age brought serious accidents, with resulting litigation involving large sums, requiring the services of capable, experienced lawyers. The inability to pay for such services remained. Hence a necessity to provide for their payment out of the recovery. The defendants' able counsel had to be matched
by able counsel for the plaintiffs. That being the only mischief, the common-law rule of quantum meruit should not have been repealed any further than was necessary to provide for that mischief. What is the reason for the common-law rule of quantum meruit? Think it out for yourselves. To permit an attorney to have an interest in the proceeds of a litigation is an incitement to litigation. One of the main reasons why our calendars are burdened is because the contingent fee has induced a frightful amount of litigation. The underlying reason why the common-law rule was wise, is this, that the attorney and the client do not deal on equal terms. You cannot wipe that out by any legislation. It is not necessary before a body of men like this to say any more in support of such a proposition. The client does not know about hazards of litigation and the attorney does. If that is so, and I submit your own experience and judgment will adduce the necessary arguments in its support, then does it not follow that the Legislature made a mistake in going so far as to allow unrestricted agreements in all cases? Is a client to be delivered into his attorney's hands under caveat emptor? Should we not try to get the right rule back into force? Restore the old rule of quantum meruit, and simply put into the quantum meruit the element which was not in the old common law, namely, the contingency of non-payment? In short, let the rule which should govern the contract in such cases be quantum meruit, but put in as elements of the quantum meruit the contingency of nonpayment in case of non-success. I venture to say that if
that is done, and we provide that at the end of the litigation the attorney shall receive what is fair and reasonable in view of his services on the trial, on appeal, on a new trial, as the case may be, the amount recovered, and the