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It is not very long ago that it was comparatively rare, even in particularly distressing cases, that industrial and transportation companies were called upon to answer for the negligent conduct of their business resulting in death or injury.

The indigent, the lately arrived immigrant and generally the classes to whom it ought to be the pride of the Bar to be of assistance, either failed generally to recognize that they had rights under the law, or they were apprehensive of the power and influence of the parties whom they must necessarily engage in litigation, or they were hopeless of being able to fee a lawyer of talents sufficient to enable him to cope with the adversary whom the opposing party could employ.

The increase in litigation of this character is by no means due entirely to the greater number of accidents resulting in death or injury.

Much has been written and said of the number of cases of the class spoken of that are devoid of merit, and of the disposition of juries to award damages in them without regard to the facts. In fact, scarcely more than one side of the question has been put before the public. Without stopping to inquire how much of truth and how much of error there is in the charge that is made in this connection, it will be assumed that no one is going to assert that there are no such cases that have any merit. It will scarcely be contended that the corporations or individuals who become defendants in these actions are never negligent, or that if they are they always make liberal settlements in cases of just liability. Indeed, it must be admitted, as it will be by all who have any knowledge of the subject and any desire to be candid, that a vast multitude of such cases are not only meritorious in point of law, but appeal in the most forcible way to every sense of right and justice. Not infrequently the facts are not seriously in controversy, and there is simply a question of the liability upon undisputed facts.

What are we to understand is to be the attitude of this Association toward the prosecution of such actions? Is it not to the interest of the public, as well as to the interest of the Bar, that no one who has a just cause of action should be denied an oppor

tunity to prosecute it with vigor and effect? Yea, even that one who has not a good cause of action, but on the advice of reputable counsel thinks he has, should be accorded an opportunity to have it adjudicated with the assistance of the most capable lawyer he can secure.

How are actions of that character to be prosecuted except they be prosecuted upon a contingent basis? It is altogether conservative to say that seventy-five per cent of them never could be brought at all except upon such an arrangement.

As a very general rule, the parties are utterly devoid of means that will enable them to contract for the services of a lawyer of experience and ability, who is to be paid whether the litigation shall be successful or disastrous. The defendants in these actions are usually individuals or corporations of very considerable wealth, employing attorneys at fixed annual salaries, and it is rare that an adverse decision in the lower court is accepted by them as final. The prospect of ultimate defeat with a liability not only for the court costs, but for even a moderate fee to a skilled lawyer, is simply appalling, as a rule, to those not altogether lacking in means. For most of the litigants prosecuting cases of this nature utter inability to meet a contract for a fee absolute prohibits even contemplating entering into one. This aspect of the subject has not been wanting in attention from the courts. As early as 1855 Judge Thompson, speaking for the Supreme Court of Virginia, in Major's Ex'rs vs. Gibson, 1 Pat. & H. 4883, said:

"It is the feature of contingency that brings it within the influence and scope of the policy which condemns champerty and maintenance, because, according to the argument, it gives an undue stimulus to the zeal and to the selfish passions of counsel, has a direct and irresistible tendency to debase and demoralize, to render them insensible to the promptings and deaf to the voice of professional honor and duty, and to corrupt and obstruct the pure administration of justice. I confess I can perceive no such vicious tendency or effect in a contingent or conditional fee. Abrogate the rights so to contract and whilst you would thereby shield the wrong-doer from amenability to redress, you virtually close the doors of justice upon the party aggrieved in many cases; for with us, however it may be considered elsewhere, lawyers are not officers bound to undertake causes whether they will or not."

In the case of Reece vs. Kyle, before referred to, it is said: "In this way many poor people are enabled to obtain justice where without such aid, they would be remediless."

And in the course of the same opinion, the court adds:

"It would not be wise to carry rules adopted originally for the purpose of preventing the powerful from oppressing the weak by groundless suits in the courts, to the extent of hindering the weak by efforts to avail themselves of lawful remedies against the powerful, now that conditions making the ancient rules necessary have substantially disappeared, and new conditions. have arisen, by reason of which it has become the interest of the powerful to embarass and hinder the dependent and weak from getting speedy justice in the courts."

It is altogether quixotic to imagine that members of the Bar of high standing are going to come forward to offer gratuitously to prosecute such claims, even though their oath of office might seem to enjoin such a course. The ordinary person would be restrained by the most commendable considerations of delicacy from even suggesting to a busy lawyer that his duty enjoined such conduct or from intimating in the most delicate way that he would be pleased to have it observed. It would be regarded by every self-respecting person as a solicitation of charity, as it, in fact, would be. Even if the attorney of his choice proved acquiescent, and if he had the abhorrence of mendicancy which is a distinguishing trait of American citizenship, the outgrowth of democracy, the prospective client would, after confessing his inability to pay anything except in case of a recovery, offer to give out of it what should appear reasonable for the services rendered. Would it not be altogether honorable on the part of the client so to offer? And how could it be dishonorable on the part of the lawyer to refuse to assent? And what is that but a contract for a contingent fee? Nothing if the case is lost, a reasonable fee if it is won. It differs from the ordinary contingent fee only in that the amount is not fixed in advance. It is left to a subsequent agreement between the parties, or to the determination of a jury in case they disagree. Speaking generally, actions founded on negligence must be prosecuted on a con

tingent fee basis or they cannot be and will not be prosecuted at all.

The subject has a special importance to the Bar of our state, because of the frequency with which mining litigation is carried on under an arrangement for a fee to the attorney contingent upon success. A prospector discovers a vein upon the public domain and locates a quartz claim. He spends the best years of his life in developing it. He endures the hardships and the privations of life in a region remote from populous centers. He labors for a time for wages and then returns to his work on the claim of whose wealth he dreams. Finally he strikes ore that promises to reward richly all his labors. The news of his success is bruited abroad and speculators locate all around and on top of him. Some one discovers that his location notice is defective, or is supposed to be, or claims that in some particular he has omitted to observe the law-possibly that the name of his location was not distinctly marked on the corner posts. An adverse claim is asserted by some newcomer who sells out to a powerful and wealthy corporation, which proceeds to enter into his claim through adjacent property, which it has acquired, and to extract the ore which he has discovered. He comes to my office and tells his story. Every dollar he has is in the claim. If he loses it he is penniless, more than that, he is hopeless. He can hold out no inducement that in case the suit is lost he will eventually pay out of his future earnings or out of property he may acquire, what is just. He has no expectation of being able to pay except out of the imperiled property. He offers to pay in case of success out of the first moneys realized from the sale of the ore he will extract, if allowed to hold the claim, or even to give an interest in it.

I am compelled to say to him that such an agreement is regarded by the profession as rather discreditable; that while the American Bar Association does not absolutely prohibit its members from entering into contracts of that character, it is disposed to frown upon them and that a lawyer who makes an arrangement of the kind loses caste with his professional brethren. commend him to my neighbor across the street, whose conduct

is influenced by no such considerations. The perfectly obvious effect of the adoption of such a canon as No. 13 is to throw all business of the character mentioned into the hands of the very lawyers whose reprehensible practices have brought contingent fees into so much disrepute as they suffer from.

We cannot imagine that they, as a class, have the qualities essential to success in the appellate tribunals, however they may wrest verdicts from juries. The inevitable consequence must be that in the consideration in the highest courts of the basic principles of the law, so far as they are involved in those actions, the one view will be presented by able, distinguished and influential counsel, while the other will be urged only by the reprobates of the Bar. Error must result. If there is one preeminent duty devolving upon this Association, it is to preserve, so far as it can, the courts of ultimate resort from the announcement of incorrect principles. The error that must insidiously creep into the law in this way is the more to be deplored because it is error in general, to the disadvantage of the poor and the weak and to the aid of the rich and powerful, error of the kind. that arouses antagonism against courts and judges and prepares the soil in which the seeds of anarchy take root.

But the proposed canon declares that contingent fees "lead to many abuses." Into what abuses do they lead honorable, highminded attorneys? It would be in the nature of a gratuitous assumption of superior virtue for any lawyer to assert that there are none such who contract for contingent fees, and contrary to the fact to pretend that they are not guided in the conduct of their business, and in the prosecution of their cases by as inflexible a morality and as keen a regard for propriety as their brethren who from choice, or because of conditions, do not. Nothing in the rules of conduct announced in the report of the committee can be considered as either an asseveration or as carrying a suggestion that they do not. It is among those who feel no restraint, either of moral or professional propriety, or those upon whom such considerations weigh more or less lightly, that the abuses of contingent fees are exhibited. It is against the abuses of the system as practiced by such and not against the

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