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law. Subsequent supervision would scarcely reach any possible abuse except extortion. The present law, likewise, is as farreaching as is to be desired. The very slightest imposition avails to render such contracts void. The least want of good faith in representing the difficulties of the litigation suffices to invalidate them, and justly so, because in that regard the parties have not equal opportunity to know, do not stand on the same footing. But when there is no unfairness whatever, why should not a lawyer be permitted to make just such a contract for his services as he finds himself able to. The law permits him to accept or to decline employment as he chooses, why should it deny to him the right to fix the terms of his employment? It permits the plumber to do so, the blacksmith, the stock broker, every laborer in the vineyard. He may demand in advance a fee absolute as enormous as he cares to. If the client does not care to pay it, lie can hire some other lawyer whose terms are easier. If he knowingly and willingly assents to those first proposed, if he prefers the more expensive man, why should he afterwards be permitted to escape by paying what he would have been obliged to pay the other? And why should a lawyer be permitted in dealing for his services with one sui juris to exact any amount as a fee absolute, but not as a fee contingent?
The only effect the recital in Canon 13 that contingent fees should be under the supervision of the court can have, is to cast discredit upon them. It is one of the marvels of the human mind that motives popularly embraced persist in spite of reason and that the most virile owe so much of their convictions to their environments and the thought of those with whom they are associated and with whom they come into contact.
Canon 13 is but the flickering remnant of the sentiment which the Supreme Court of Pennsylvania described by the phrase, " the dignity of the robe," a sentiment which has no place in American life or in American jurisprudence. It ought not to be imposed upon the Bar of this country as in any sense a guide to professional conduct.
I move that this canon be not concurred in.
Rome G. Brown, of Minnesota :
The argument of the gentleman that the lawyers of this country, in respect of their contracts with clients, should be allowed to indulge in the same freedom as to their charges, and contracts for charges, as plumbers, does not appeal to me. I do not read this Canon 13 as prohibiting a lawyer from undertaking a case on a contingent fee. The only object of the canon is to protect against abuses of the contingent fee practice. The protection that the poor plaintiff in a personal injury case needs today, is more often protection against her lawyer than against the defendant, whether the latter be an individual or a corporation. This canon recommends such protection. It does not attack the contingent fee, especially under proper circumstances such as have been suggested by the gentleman from Montana. It only recommends that contingent fee contracts be subject to the supervision of the court, in order that the client be protected against overcharges. I can site an instance that came up within the last three months in Minnesota, where a lawyer, who I believe is a member of this Association, made a contract with a poor woman in a personal injury case, by the terms of which the lawyer was to get fifty per cent of the gross amount recovered, and the capper or runner who had solicited and procured the business for the lawyer was by the same contract allowed a further ten per cent of the gross proceeds. Then by the same contract, after these important interests had been protected and paid, the expenses were all to be taken out, and the poor client was to receive what was left--that is, of course, if anything was left. I am referring to this case because it will be interesting also when we discuss Canon No. 28. I have run across in my personal experience cases where good substantial settlements were about to be closed and then by the intervention of a contingent fee lawyer settlement has been prevented, a contingent fee contract has been made for fifty per cent or more of the gross proceeds, whether by suit or by settlement, and full power given to the attorney to settle the case. Repeated demands from the client on the attorney to effect settlement at a given price were ignored. The attorney would speculate on the cause of action which his client had, force him into litigation so that the only substantial results accrued to the attorney, and with little or nothing left to the client after expenses were paid. The contingent fee contract is one which is allowed by law in some states, although it was a crime at common law and was and is still prohibited in many states because it is the subject of such abuse. It may be proper in some instances, but in all cases where allowed by law it should be subject to the supervision of the courts, both in its inception and in its enforcement.
May I ask the gentleman what the Bar of Minnesota did to that man?
Rome G. Brown:
The occurrence was very recent. Whether there is any remedy under the law, remains to be seen. However, that same attorney argued before the court and before the jury that he was strictly within his legal rights in making and attempting to enforce that contract. I want this canon to pass, substantially as it now stands, so that we may have good precedent for the establishment of a proper rule in Minnesota ; and so that no lawyer can stand up and attempt to justify either under the law or the established code of ethics, contingent fee contracts of this sort.
The Chairman :
I have heard no second to the motion that Canon 13 be stricken out.
James A. Hargett, of Washington:
I think most of us have on occasions accepted employment on contingent fees and I don't think any of us could be accused of anything dishonorable, or violating professional ethics in accepting that employment. I want to say that I am almost invariably, in recent years, on the other side of the case from the contingent fee lawyer, but, in my opinion, this Canon 13 is indefinite and would, as Mr. Walsh said, cast a discredit upon any man accepting employment in that way. Some contingent fee lawyers are not reputable. But some lawyers who are employed in estate matters, for example, are not reputable either. They take the entire estate in the end. Now does this mean that every contingent fee contract shall be submitted to the court in advance, so that the court shall say whether or not the attorney can represent the client under the contract to which they have agreed ?
David L. Withington, of Hawaii:
I cannot vote for this canon as it stands because it seems to me that it puts the American Bar Association in the position of condemning absolutely something which they allow to exist. The only statement that is definite in it is that contingent fees lead to many abuses. What the committee undoubtedly meant was that contingent fees often lead to abuses. It seems to me that the best way to adjust the matter would be to amend the canon by striking out the words, “lead to many abuses and.”
James A. Gibson, of California :
I second the motion, if the gentleman makes his suggestion as a motion.
David L. Withington:
The suggestion made by Mr. Withington is an excellent one and ought to be acted upon. It is in accordance with the federal practice, in Ohio, to regulate contingent fees. Several of us in the back part of the hall have been endeavoring to frame a substitute which would meet the suggestion made by Mr. Withington, as follows: “As cortingent fees often lead to many abuses, they should be placed under the supervision of the court, so far as may be necessary to prevent their many abuses in the practice of charging contingent fees.”
Francis Fisher Kane, of Pennsylvania :
I do not know whether it is in order or not to move another amendment, but I have an amendment which I think is a little more clear, with all respect to Mr. James.
It is this: “ Arrangements for contingent fees may within proper limitations be honorably made, but if the client subsequently objects to the allowance of the stipulated compensation he should have an opportunity to ask the court to determine in a summary way whether those limitations have been exceeded.”
That, I think, is plain and unequivocal, and I think it is due to the gentleman from Montana, who read his admirable remarks, that something of the kind should be adopted. I did not agree with everything he said, but in the main there was much that we must assent to in his argument. The first clause of my amendment is: “ Arrangements for contingent fees may within proper limitations be honorably made.” One of those limitations would be, for instance, that one-half is always too much. But I do want to have this Association say that contingent fees may be honorably received; I do not want the Association to evade the issue, and I think there is an unfair innuendo in the words of the canon as proposed. Then the second clause of my amendment is, “but if the client subsequently objects to the allowance of the stipulated compensation, he should have an opportunity to ask the court to determine in a summary way whether those limitations have been exceeded.” I did not draft this amendment myself, and the gentleman who drafted it does not wish me to use his name, but I think it shows an experienced hand, and I believe you will agree with me that it also meets what was really objection No. 2 to the canon proposed by the committee, to wit, the indefiniteness of the phrase, “under supervision of the court.”
C. E. S. Wood, of Oregon:
I am now suing a construction company in behalf of a client for seven dollars, blacksmith's wages. I would ask the gentleman whether he would consider one-half of that too great a fee.
Francis Fisher Kane:
I enjoyed, as I have no doubt all of you did, the remarks of the gentleman who read from a paper. I think much of what he