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system itself, which, as I maintain, for reasons adverted to, is an essentially beneficent one, that the denunciation of this body should be aimed. Any condemnatory resolution, however covertly expressed, or however moderate its terms, tending as it would to drive a large volume of business now in the hands of honorable and capable practitioners into those of lower ideals and lesser talent is to be deplored. What are those abuses to which reference is made in Canon 13 ?
Foremost among them is solicitation or what is sometimes called “ambulance chasing.” We would shut our eyes to obvious conditions if we were to assume that this offense is confined to those who seek employment on a contingent fee basis. Reprehensible as “ambulance chasing” is, it is scarcely less so than the intriguing notoriously resorted to in the effort to get into salaried positions on the legal staff of great corporations and trust companies. Nepotism is not unknown in connection with such efforts, if current rumor and popular belief be any guide.
There is no distinction in refinement between the “ ambulance chaser” and the individual who multiplies his membership in clubs and fraternal orders, or who strives after social position in the expectation of getting returns in retainers. The abuse which is uppermost in the minds of those who involve all who contract for contingent fees in the sins of those guilty of the abuse is properly condemned by Canon 28 of those proposed by the committee which declares that:
“ It is unprofessional for a lawyer to volunteer advice to bring a law suit, except in rare cases where ties of blood relationship or trust make it his duty to do so. Stirring up strife and litigation is not only unprofessional, but it is indictable at common law. It is disreputable to hunt up defects in titles or other causes of action and inform thereof in order to be employed to bring suit, or to breed litigation by secking out those with claims for personal injuries or those having any other grounds of action in order to secure them as clients, or to employ agents or runners for like purposes, or to pay or reward, directly or indirectly, those who bring or influence the bringing of such cases to his office, or to renumerate policemen, court or prison officials, physicians, hospital attaches or others who may succeed, under the guise of giving disinterested friendly advice, in influencing the criminal, the sick and the injured, the ignorant or others, to seek his professional services. A duty to the public and to the profession devolves upon every member of the Bar, having knowledge of such practices upon the part of any practitioner, immediately to inform therof to the end that the offender may be disbarred.”
The contention that there is any more perjury or subornation of perjury in cases prosecuted upon contingent fee contracts than in those in which that feature is wanting, or than there is in the defense of such actions, rests solely in assertion. Repetition has gained for it some measure of acceptance without any kind of competent proof. Revelations in recent years of more or less completely organized forces for suborning witnesses maintained by corporations subjecting themselves to actions for damages on account of negligence, and other disclosures manifesting a rather lower moral tone among many of them than was to be expected, lead to the belief that this accusation originates in a desire to divert suspicion from parties themselves guilty. Coming from sources to which wealth gives a meretricious respectability it gains ready credence and is repeated thoughtlessly by many who accept it in the most perfect good faith.
A little reflection ought to convince any one of the likelihood of encountering perjury and subornation of perjury in as great frequency on the part of defendants as on the part of plaintiffs in personal injury cases. All the great railroad companies and many of the industrial corporations maintain claim departments, the most important duty of which is to procure testimony that will aid in making a defense to any action for damages that may be brought against them.
Neither the heads of nor the subordinates in these departments are as a usual thing members of the Bar. They are inspired by the desire to succeed in their undertaking, a motive very common to humanity. They are ambitious and expect promotion to follow from results satisfactory to their employers. They labor, as a rule, among other employes of the common master, equally zealous to demonstrate their devotion and attachment to its supposed interest--often themselves charged with responsibility for the disastrous occurrence which is the subject of investigation and anxious to relieve themselves from blame. They are unrestrained by either professional pride or the dread of disbarment. They are amenable for their misdeeds only to criminal process and criminal procedure, where the presumption of innocence and the rule of reasonable doubt afford most substantial protection. The lawyer who attempts subornation takes the same chances of criminal prosecution, and the further risk of trial for disbarment before a judge, keen, as he should be, to detect and eager to punish an offense, heinous in itself and reflecting so seriously upon the honor of the profession of which he is a member. Altogether there is really less to fear in the matter of perjury and subornation from the contingent fee lawyer than there is from the claim department, and as to the middle man who makes it his business to obtain from the claimant the authority to prosecute the action, and who then enters into a contract with a lawyer whereby the latter does the professional work, the efficacy and efficiency of the claim department, placing the lawyer who must rely on his own industry and opportunity, or that of his client in the search for witnesses, at a decided disadvantage, is to no small degree responsible for his existence. Nefarious as his occupation may be, it must be recognized that the opposing party to the litigation is equipped, ordinarily, with a force against which he contends.
His contract for services, at least when dependent upon success, is generally held to be void, and if it should be desirable to eliminate him altogether a criminal statute outlawing his business would probably not be assailable on constitutional grounds. It would be both unjust and ineffective to endeavor to get rid of him by denying to lawyers the right to enter into contracts for contingent fees directly with their clients. Condemn that course and the claimant is driven to contracting with the middle-man, who then employs an attorney for a fee absolute, having agreed with his client to provide the funds necessary to carry on the litigation and to endeavor to procure the testimony necessary. It is not to be understood that there is any purpose to intimate by anything here said that the claim departments of the great transportation and industrial corporations do not, as a rule, conscientiously discharge the duties devolving upon them. It is insisted that the conditions make it as likely that perjury be found on the side of the defense as on the side of the prosecution of personal injury and death cases. And it is submitted that the number of lawyers who have even countenanced or procured perjury, moved by the spirit of avarice, in view of the fact that their compensation was contingent upon success, is a negligible quantity. In the nature of things there can be no statistics to guide us in forming an opinion on the subject. The guess of each man will be influenced very largely by the confidence he feels in the integrity of men in general and in the Bar in particular. If he entertains the suspicion of lawyers which finds expression in the efforts of the newspaper paragraphist and which pervades the public mind to a greater or less degree, a deep-seated tradition of marvelous vitality, his estimate will be large. If he knows the lawyers of today as they know each other, it will be consolingly small. Temptations vastly more powerful than the hope of getting a fee beset every lawyer. The desire to succeed, a constant spur to endeavor, is a common attribute. It persists with vigor scarcely diminished throughout the professional life of every lawyer. It is not less present, though perhaps less noticeable, in the seasoned veteran than in the tyro at the Bar.
With rare exceptions whatever temptations there may be to resort to criminal methods is withstood. What reason is there to believe that any lawyer, whose moral stamina would otherwise have maintained him in uprightness, will yield under the added influence of the fact that he gets a fee only in case his client prevails? The imputation ought to come from some other source than an association of members of the Bar.
But Canon 13, in view of the abuses to which contingent fees are said to lead, declares that they should be “under the supervision of the court.” That contemplates legislation, legislation legalizing contracts for contingent fees in those jurisdictions in which, by judicial ruling, they are now condemned, and imposing restrictions in those justifying them. It would seem that we had now passed beyond the domain of professional ethics. If there is anything ethically wrong in contracting for a contingent fee, the character of the act, professionally, can scarcely be elevated by making it subject to the supervision of the courts. A law making all contingent fees subject to the supervision of the court would almost carry an implication that they were all more or less subject to suspicion. But what kind of supervision is contemplated? Is it intended that in order that such contracts shall have any validity they shall be approved in advance by the court? That an inquiry shall be conducted as to the manner in : which the lawyer.got the business, whether there has been any solicitation, whether the terms are fair and reasonable, what the facts are that the judgment of the court may be informed as to the good faith of the proposed suit? There is not a self-respecting lawyer in America who would subject himself to such an inquisition. He would prefer to rely on the good faith and gratitude of his client to carry out voluntarily the contract though it wanted the oflicial sanction which would make it enforcible, with the right reserved to sue on the quantum meruit, if he had to. The committee could scarcely have intended, after mature thought, to recommend any such legislation or even to contemplate that the lawyer who has entered into an arrangement that is perfectly satisfactory to himself and to his client must, in order to maintain his standing in the profession, voluntarily submit the subject to the judge of the court for approbation after a similar inquiry. If the proposed canon means that the law should provide that when suit is brought upon such contracts, they should be upheld, if in the judgment of the court the compensation is reasonable or held valid only to the extent that the compensation is reasonable, there is no contract at all. Such a law is, in effect, a law condemning contingent fee contracts. It takes away from the parties who are willing to contract on terms mutually agreeable the right to do so. Supervision by the court exercised in a subsequent suit on the contract could not reach the abuse of solicitation nor go farther than the law does now in respect to subornation of perjury. It is scarcely to be doubted that a defense that in the performance of the services contemplated by the contract the plaintiff had been guilty of suborning witnesses, would defeat a recovery in any court without any more