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said was quite aside from the subject, however, and was based upon an entire misapprehension of the purpose of the committee. The canon is indefinite. It is a difficult subject to treat. It has been under consideration by Bar Associations in different states. It is now under consideration by the Bar Association of New York, and is being handled by a special committee.
I think a careful reading of this canon will make it plain that it had two objects in view. One was, not to commit this Association to the declaration that contingent fees were proper, in states where they were not allowed by law. I do not think we ought to give an expression on that subject, because there are some states that do not permit them, and we ought not to go on record as making a general declaration. The object was not to relate to the conduct of trials, or the contracting for contingent fees in those states where it is legitimate. It was intended to protect clients against such abuses as have been referred to by the instance cited by the gentleman from Minnesota. Now, in view the discussion that has taken place, I offer the following amendment on behalf of the committee: namely, that the canon read as follows:
“ 13. ('ontingent Fees.-('ontingent fees, where sanctioned by law, should be under the supervision of the court, in order that clients may be protected from unjust charges."
David L. Withington:
I am willing to withdraw my amendment in favor of the one suggested by Mr. Dickinson:
Francis Fisher Kane:
The question is upon the amendment just offered by the member of the committee:
The amendment was adopted.
amount of the fee, but also in the clause which provides that the lawyer shall himself pay any portion of the costs or expenses of the litigation. To correct that evil, I would offer as an additional amendment to this section the following:
“ Under no circumstances should such agreements include the payment by the lawyer of any costs or expenses incident to the litigation.
C. E. S. Wood, of Oregon:
I think this amendment brings up a subject that rests in the personal conscience of the lawyer, and the Bar generally. What does the Bar do to its members who are a disgrace to the profession? Will you say that contingent fees are dishonorable, and by implication brand the man who accepts them with dishonor, when we all know that they had their being in this country, in the protection of the weak and the poor, against the rich and the powerful? You cannot make a law to meet an exception, but can awaken a moral sentiment that will generate sufficient moral courage in the Bar to taboo the members who are a disgrace to it.
The motion just made is that a lawyer shall not, under any circumstances, pay the cost of litigation, treating it as dishonorable. I have now the case of a wood carver, only recently landed in this country, and who fell into the hands of a scheming partner; that partner stole his carving tools at night and carried them away and locked them up. My poor client had no money to put up to replevy the things. He did not have the money to pay out before he could get into court, the ten dollars deposit which is required under our statute. He didn't even have a cent to get a meal with. I applied to the court that he might sue as a pauper. The court quite properly said that it could not set aside the law, that the man must come into court with a deposit of ten dollars and a further deposit of twelve dollars jury fee. I applied to the county court, asking that he might get funds from the county fund to enable him to take his case into court; and when that motion was denied, I put up the money myself, and I hold that I did right.
second it. I desire to say a word upon what seems to me to be the mistake of the Association approving champerty at common law. For a member of the Bar to furnish the means to carry on litigation, I understand to be champerty at common law, and it is certainly denounced by the statutes of my state. I remember on one occasion, a very distinguished lawyer, rising in the court where I have the honor to preside, and as a reason why a case should be pressed to immediate trial, he stated that he had supported the plaintiff in the neighborhood of the court since the last term and he wanted to get his money back, and he was very generally criticized by the Bar for making that frank admission. I may be in error about this, but I think my recollection is correct as to the common law in this respect. I would ask some of the more elderly members of the Association here if that is not also their recollection. You will remember in the famous trial of Bardell vs. Pickwick, while Sam Weller was testifying he said he had gone down to see Mrs. Bardell, to pay the rent, I believe. Sergeant Buzfuz asked, “ Did he talk about the case ? " “Well," he said, "the ladies did get to talking about the case.” “What did they say?” “Well, they spoke of the honorable conduct of Messrs. Dodson and Fogg." "Ah, indeed,” said Sergeant Buzfuz. “What did they say?" “Why,” said Sam, in substance, “they spoke of them as being so honorable in not charging any of the costs against their client, but in attempting to get it out of Mr. Pickwick."
James E. Babb, of Idaho:
It seems to me that this discussion has overlooked some fundamental principles.
The argument that we have heard here so far has been based upon the theory that an attorney does not, in the discharge of his duties, perform the duties of a public officer. I think that contention is not well taken. The attorney, as well as the judge, the juror, or the sheriff, or the clerk, is one of the important officers of the state, and he has to take an oath of office as such. All of these other officers must not have a personal interest in the particular case being tried, and it is important also that the attorney should have no interest in the case. The time was when attorney's fees of any nature were not collectible. Not simply contingent fees, but no fees whatever could be collected by action. But we have progressed and we allow the collection of attorney's fees generally, and we allow, in most of the states, the collection of contingent fees. I am not in favor of the condemnation, absolutely, of the contingent fee, but I think it is a matter which interposes between the attorney and his duty, an interest which detracts from the proper discharge of his duty. Many precedents at law in equity condemn a relation where there is a conflict between pecuniary interest and duty. It has not been long since a witness could not testify who had an interest in the cause, and interest in the cause is still a paramount element in judging the credibility of witnesses. In some places an advocate is not allowed to testify in a case in which he is engaged and everywhere the conditions under which such testimony is given are prescribed by the court. In many states, as in Illinois, a contract whereby an attorney is to have a portion of the claim that he is suing upon in compensation for his contingent fee is illegal and the opposite party may settle the case with that attorney's client and dismiss the suit without regard to the attorney. A proper supervision of contingent fees, as proposed in the draft of the 13th canon, would give repute of fairness and propriety, and stamp of legality to contingent fees in proper cases, and, by eliminating such contracts as should not be made, would eliminate much disrepute, offense and impropriety from court procedure. Putting the matter in the control of the court will injure no person. We are familiar with the court's control of allowances for expenses and solicitor's fees in divorce cases.
F. C. Robertson, of Washington:
I do not believe the Association can afford to adopt this canon as now presented and amended without doing serious injury to a large class of suitors who are particularly in need of fair treatment at the hands of the court.
The Chair would remind the speaker that the only question before us is upon the amendment offered as an addition to the substitute which makes it reprehensible for any lawyer to pay any portion of the costs of the case.
Amasa M. Eaton:
I beg the Chair's pardon; it makes it wrong to make an agreement to that effect. That is the question to discuss, if there is to be any further discussion.
F. C. Robertson :
I believe the opposition to contingent fees in this Association is not predicated upon a knowledge of the conditions that surround the practice in all sections of the country. My services have been sought, as have those of many other attorneys, by men who have not the means to pay a lawyer to represent them, and the Supreme Court of this state has held that these agreements are proper.
Charles Henry Butler, of New York:
I will second that motion, and in doing so, I wish to say that the subject matter of this report is the most important matter that this Association can deal with. For that reason, I do not want any error of phraseology to appear in any part of it. It is for that reason that I second the motion that the canon may be recommitted to the committee.
C. La Rue Munson:
I will withdraw my amendment, with the consent of my second.
I seconded Mr. Munson's amendment and I consent that it be withdrawn.
This Association ought not by resolution or by a canon of ethics to place its seal of approval absolutely upon contingent fees, and neither should it by resolution or canon affix its con