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contingency of non-payment, put those into your quantum meruit; and if the attorney and client cannot agree on what is a reasonable sum let them submit their controversy to the Court, as they had to do in olden times always, and must still in the absence of agreement, and then, I respectfully submit, the abuses of the contingent fee as now existing will be uprooted.
In the opinion of the Chair, the report of the committee is that the committee is unable to agree, and the paper which Mr. Leavitt has read should be regarded as the statement of the individual views of members of the committee. If there is no objection, those statements of individual views will be placed upon file and the discussion will proceed upon the failure of the committee to report. The discussion is brought up by the resolution offered by Mr. Leavitt individually, and not as representing the committee.
The resolution is the same as in the report except it cuts out the words "to agree" on the second and third lines of the page, and inserts the words "after collection" after the words "they may agree upon."
Henry W. Jessup, of New York:
Mr. President and gentlemen, I abstained from yielding to the temptation to move to lay this subject on the table subject to the slow process of elevating professional standards and ideals. I think we ought to do something toward elevating the professional standards and ideals, and I offer a substitute resolution, and I move to substitute after the words in the fourth line of this resolution "as proved that,"
language that will make the resolution read "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 all agreements for contingent fees should by appropriate amendment be made subject for their enforcement to the scrutiny of the Courts as to their reasonableness when made." I offer that as a substitute.
Charles A. Boston, of New York:
Mr. President, I second the motion.
John Brooks Leavitt, of New York:
Mr. President, I would like to ask what is intended by the phrase," reasonableness when made?"
Henry W. Jessup, of New York:
Precisely to meet that thing which is the vice of all agreements for contingent compensation. It may be that a man is not subject to the necessities of poverty, but chooses to make such an agreement, and it may be that he is, it may be the prospects of success are doubtful, all those elements which you consider there should be taken in consideration by the Court, elements which should determine the contingent agreement if made at all. If you made all contingent agreements subject to the scrutiny of the Court, then those conditions, taken into consideration by the Court, could determine whether the attorney has the right to enforce it. I would be in favor, if the agreement is held to be unconscionable, that the attorney should be without compensation, but we do not want to go too fast.
Isn't that the law as it is now? I ask, not in a controversial, but in an inquiring spirit. I had always supposed
that the rule between guardian and ward, trustee and beneficiary, lawyer and client, or anybody else in a fiduciary relation was subject to the scrutiny of the Court. But of late years there has grown up a doctrine, certainly among some of the profession, and there are some expressions in the books which would seem to imply it, that those agreements are, as our Code says, unrestrained by law. It is actually contended that it was the intention of the Legislature to put the contract between attorney and client upon exactly the same ground as between a vendor and vendee, and to apply the rule of caveat emptor. But I venture to assert that it is still the law that Courts have not been deprived of their power of scrutiny over contracts between attorney and client as to whether they are reasonable.
Mr. Jessup :
Only, if the question of compensation becomes a litigated question. The object of this resolution is to make contingent agreement subject to the scrutiny of the Court. If the lawyer is compelled to make it from the necessities of his client, he cannot object to that scrutiny; if the agreement is unconscionable at the determination of the litigation, the matter of compensation is made subject to the scrutiny of the Court, not dependent upon the initiation of an objection or dispute.
William Vanamee, of Newburgh:
Mr. President, I am heartily in favor of the substitute and opposed to the resolution offered by the distinguished Chairman of the Committee upon Contingent Fees. There is certainly one expression in that resolution which I criticise as having no application whatever to American busi
ness, and that is the reference to an agreement by the year between a client and his attorney. I suggest that is absolutely inapplicable to the conditions of life in this State. The learned Chairman spoke of the Courts and the lawyers and the legislators from Montauk to Buffalo as coming within our advisory jurisdiction. I challenge the suggestion that from Montauk to Buffalo there is any condition. of society whatever in which the subject of a yearly compensation as between the client and the attorney arises. I come from Orange county, an agricultural county, a county in which this subject of contingent fees comes up with reference to clients who never have any other cases with the attorney who brings that action except that one case. The experience of lawyers is, and I appeal to the members of this Association to confirm my statement, the experience of lawyers who bring a negligence case is that after that particular case is concluded they never see that client again, just as they never saw him before that case was begun. It is absurd to talk about a yearly compensation as in any way applicable to American conditions. My learned friend, in his support of the resolution which he offered, made another suggestion which I challenge. He says that this subject of contingency is sapping the relations, the proper and normal relations and adjustments, which should exist as between counsel and Courts, and that every attorney who goes out of a Court nonsuited, goes out treasuring in his heart personal animosity against the individual Judge who has been constrained to grant that nonsuit. I challenge that, too. In Orange county, which is a part of the Ninth Judicial District, we have those learned Judges, Keogh, Morschauser, Mills, Tompkins, and Hirschberg, although he is now sitting in the Appellate Division, and I challenge the suggestion that any
lawyer who goes out of the Court of either one of those Judges smarting under a nonsuit, allows that feeling to take the form of personal animosity. The experience of lawyers will bear me out that every Judge who is constrained to grant a nonsuit does so reluctantly, and makes that reluctance perfectly manifest to counsel. Every lawyer here will confirm me in the statement that in many cases where a Judge is in doubt, he allows the case to go to the jury, to take its verdict, reserving the question of law after that verdict, because he wants to deal with the subject fairly and conscientiously, and I challenge the suggestion that any personal animosity ever arises between. counsel and Court growing out of the granting of nonsuits.
Are you ready for the question on the substitute?
Henry A. Forster, of New York:
Mr. President, I have to oppose this resolution and agree with the dissenting members of the committee. As I recollect the practice in England, no barrister was allowed, unless he took public office, to contract for a yearly fee, but a solicitor could. The great trouble, I have found, is that some people who are supposed to have been paid by the year to litigate largely, though not always, for defendants, litigate everything to death and indulge in dilatory tactics. If you are going to allow what is not the case in England, that counsel be retained by the year, how else can the poor man oppose him unless he has the contingent fee?
Francis B. Taylor, of Hempstead:
Mr. President, I would like to ask whether the accomplishment of Mr. Leavitt's purpose would not have the result