25 Iowa 487 | Iowa | 1868
Before entering upon its discussion, it is proper to say that the testimony is all before us, and if upon this, plaintiffs were not entitled to recover — there being proper issues in the answer — defendant is not concluded even by a failure to except to the ruling of the court on his
A very interesting and well considered case, upon a question quite analogous is that of Kennedy v. Brown and Wife, in the English C. B., found in Law Reg., April, 1863 (7 L. T. Rep. 626; 9 Jur. 119). It is there decided (Erle, Ch. J., delivering the opinion) that a promise by a client to pay money to counsel for his service's, whether made before, or during, or after litigation, has no binding effect; and that the relation of counsel and client renders the parties mutually incapable of making any legal contract concerning advocacy in litigation. And the opinion proceeds at some length, and by a thorough examination of the authorities, to show that in England a counselor cannot bring an action for his fees, that this is honorari/um and not a debt, or, as Blackstone has it (328), “fees are given not as looatio or eonductdo but as quiddam honorarium — not as salary or hire, but as mere gratuity.”-
In this country — in all the States except New Jersey (see the able and admirable note to the above case, Law Beg. 1863, p. 372) — the doctrine is settled otherwise, and here the attorney, or counselor, or advocate (for the distinction between them is not kept up in many of the States) may maintain an action for his fees in litigation. And though accepting and bowing to the decisions as made, we cannot but admire and approve the high and dignified ground taken by the English court in following the rule of the common law. For reference, and also for
By no word of ours will we willingly recognize any rule or sanction any practice which shall tend to bring reproach upon its members, or degrade it in public esteem. To prevent this, we think a great step is gained by looking narrowly into, if not holding entirely invalid, these contracts between attorney and client, where the anxious suitor, “ elevated by hope and depressed by fear,” is induced to promise and undertake to pay extravagant, and often unconscientious, contingent fees. And so a like service is rendered by courts, where they set their faces against all those contracts, whereby the attorney undertakes, in a case, to which he is otherwise a stranger, to advance fees to. officers and witnesses,- to manage the litigation at his own present expense, and which prohibits any settlement against his will or consent. But, dismissing these general thoughts, we come to the more particular consideration of the question before us.
It was held, in Wright v. Meek (3 G. Greene, 472), that we had no statute in this State against champerty and maintenance, nor was there any necessity seen for adopting the English law on this subject. The weight to be given to this opinion is greatly lessened by the reflection that the point was really not in the case, for it was expressly held, and most reasonably, that though the law obtained here, plaintiff was not obnoxious to its penalties. That was a case where two sons were assisting the father in the prosecution of his action; and this is not claimed to be “ unlawful maintenance.” But I ask why are not champertous contracts void in this State? True, they are not so declared by statute. But they were so at common law. Peckel v. Watson, 8 M. & W. 691. And
They have no statute against champerty or maintenance in Indiana, and yet, it has been held repeatedly, that the common law on these subjects prevailed there, and that such contracts were void. This will be seen by reference to Lafferty v. Jelly, 22 Ind. 471; Coquillard v. Bearss, 21 id. 479; Scobey v. Ross, 13 id. 117.
The case before us is much stronger than that last cited; and yet there all the judges held the contract champertous. So in Alabama. See Halloway v. Chandler, 9 Port. 488, which was decided upon the common law. In Massachusetts, see Lathrop v. Amherst Bank, 9 Met. 489; and Thurston v. Percival, 1 Pick. 415; and see Key v. Vattier, 1 Hammond (Ohio), 132; like the case before us, in the fact that no compromise could be made except the attorney should join in it. Also Weakly v. Hall, 13 Ohio, 167. In New York — Merritt v. Lambert, 10 Paige, 352; S. C., 2 Denio, 607 — the rule was the same until changed by their Code of Procedure. Satterlee v. Frazier, 2 Sandf. 141. And see further, in New York, Arden v. Patterson, 5 Johns. Ch. 44; Matter of Bleakly, 5 Paige, 311; Berrien v. McLane, Hoffman (N. Y.) 421; also Benedict v. Stuart, 23 Barb. 420, as to modifications of the Code. These cases from New York were all upon con
It is not needful that I should go into the discussion of the general subject, as my only design is to justify, somewhat, my dissent from the doctrine announced in Wright y. Meek, supra. I grant that some of the reasons which obtained in favor of the doctrine originally, cannot be urged in this country. Justice may not be endangered in the same manner here as in England by champertous practices; the privileges of the law may not possibly thus be perverted into engines of oppression, and still the foundation may be as effectually corrupted thereby as formerly, and the duty of the judicial department no less imperative to put the stamp of disapprobation upon any and all schemes calculated and having a tendency to hazard its dignity.
Formerly, it may be conceded that more formidable combinations might be formed, for the purpose of controlling, if not intimidating, judicial tribunals, and yet it must be remembered that there may still be officious intermeddling, that there may still be those, who without right will seek to uphold by their services and money, another’s litigation. 9 Met. 492.
We are aware that it has been said that this (public policy) is in its nature uncertain and fluctuating; that it is difficult to detei’mine its limits with any degree of exactness; that it is an unruly horse, which, once astride, you know not where it will carry; that it may lead from sound law. Story Cont. § 546; Richardson v. Mellish, 2 Bing. 229. And yet courts in all countries have more or less to do with it in all their deliberations. From the earliest times, contracts have been declared void because against public policy. It valúes, we know, with the growth of society; it is being constantly modified and changed by the habits of our people, and the usages of trade; and it is right that it should be so. And with these changes the courts must kéep pace, not riding recklessly, but cautiously, and, if possible safely; not being led “ from sound law,” but the more certainly to its just, true and enlightened exposition. The best and most expedient rules may be pushed to such extremes, and applied to such cases, as to produce the greatest hardships. So, too, those lights usually the most reliable, may and will at times betray and mislead. It is for those administering these rules, and guided by their lights, to so apply and use them as that the law may be upheld in its purity, the rights of all protected, and public confidence in its efficacy to prevent wrong and fraud, maintained unimpaired. It is theirs to act with firmness, applying the knife if need be, with vigor; not fickle minded, not accepting every thing labeled “ public policy ” as such, but remaining ever true to duty, allow no party to be heard in its courts, who relies upon an illegal contract, who seeks to recover upon agreements which the wisdom of ages condemns, those calculated to endanger the peace and harmony of society, and
It may be, according to the theory of some, that a thing* may be lawful and not respectable, and that it may be disreputable, but not illegal; and yet, as applied to the attorney and his work, we discard it entirely. And of the attorney, so of the client. There should be no sympathy for that moral obliquity which leads the client to sacrifice on the altar of meanness, and to refuse a just compensation to, the true and faithful attorney, who, by his zeal and devotion to his cause, has saved his character, property and, may be, life. But these reciprocal duties and obligations can be enfoi’ced without violating any law, human or divine, and, without sanctioning contracts calculated to oppress the one, bring the other into disrepute, or endangering the dearest rights of the citizen and the community.
It was said in Marshall v. Baltimore & Ohio Railroad Co. (16 How. 457), that, “ public policy and sound morality do imperatively require that courts shall put the stamp of their disapprobation on every act, and pronounce void every contract, the ultimate or probable tendency of which would be to sully the purity or mislead the judgment of those to whom the high trust of legislation is confided.”
The cases of Fuller v. Dame, 18 Pick. 470; Hatzfield v. Gulden, 7 Watts. 152; Clippinger v. Hessbaugh, 5 M. & S. 315; Wood v. McCan, 6 Dana, 366; Hunt v. Test, 8 Ala. 719; Commonwealth v. Callaghan, 2 Virg. Cases 260 are cited, the court adding, that “the sum of all these cases is, that all contracts for a contingent compensation for obtaining legislation, or to use personal or any secret or sinister influence on legislation, are void by the policy of the law.” If true of legislation, why not of courts, especially as to the contracts of those who
Then, in Gil v. Williams (12 Lou. Ann. 219), it is said: “ The plaintiff in this case cannot recover, not because he has resorted to bad means in order to procure the passage of laws, in which he had a direct pecuniary interest, for of this there is no proof or imputation, but because he has made a contingent contract, which, if enforced in this case, might open the door to a practice of corruption and to the use of sinister influences.” And to the same effect, see Marshall v. R. R. Co., supra; also McGill's Admr. v. Barnett, 7 J. J. Mar. 640; Gray v. Hook, 4 Comst. 449; Bryan v. Reynolds, 5 Wis. 200; Mills v. Mills, 36 Barb. 474.
In 4 Comstock, supra, it was held, that the contract was void, by the principles of the common law, as against public policy. And, quoting from Comyn, it is added, “ all contracts or agreements which have for their object any thing which is repugnant to justice, or against the general policy of the common law, or contrary to the provisions of any statute, are void ; and, whenever a contract or agreement is entered into with a view to contravene any of these general principles, there is no form of words, however artfully introduced or omitted, which can prevent courts of law and equity from investigating the truth of the transaction ; for, ex turpi contractu actio non oritur is a rule both in law and equity.” 1 Com. Con. 30. And so where the contract grows immediately out of and is connected with an- illegal or immoral act, a court of justice will not lend its aid to enforce it. Story’s Eq. 296; Arm
But without stating further these well recognized principles, or undertaking to further fortify them by the authorities (as of course might be done without limit), we come to apply them to the case at bar. It will be observed, that, by two of the contracts in suit, defendant undertakes, as may be conceded for the purposes of the argument, in his individual capacity, that plaintiffs shall have in a certain contingency one-fourth of the amount recovered in favor of the estates which he represents. And this
But in neither of them could there be a settlement without the consent of plaintiffs, and in all they were to advance money to pay officers, court expenses, and witnesses, not calling upon the clients for any thing until the cases were determined. The per cent agreed upon, their expenses in traveling, etc., the fees advanced,— all were to come out of the amount recovered or received. And if such contracts as these can be sustained, then we dismiss all thought of suitors certainly drawing their remedies “ from pure fountains.” Lowrie v. Bordien, Doug. 468. If so, then it is idle to say that “ the law encourages the amicable adjustment of disputes.” 21 Iowa, supra. Sustain it, and the attorney, acting “ while the fever of his client is up,” will make contracts by which he will become directly interested in the prosecution of every case; and, forgetting “ the dignity of the robe” (Gibson,Ch. J., in Foster v. Jacks, 4 Watts, 384), and his sworn obligations to maintain or counsel no other proceedings than those which appear to him legal and just, and the other
And, believing that these contracts are invalid — that they come within the rules and are liable to the objections stated — we have not hesitated to so conclude, though we most frankly admit that there is nothing to show the least taint of fraud or the use of undue influence on the part of plaintiffs. They have secured contracts, it may be, not unusual in their terms. It may be, and possibly is true — in view of the situation of defendant and his need of aid at the time these contracts were made ■ — that plaintiffs are “ more sinned against, than sinning.” For aught we know, defendant is proving false to the truest guardians of his interest — impelled thereto by anger, spite, meanness; or it may be that his is the “ paw which handles hot.chestnuts for others.” Of these things
The other questions in the case need not be examined. The judgment below on defendant’s appeal is reversed. As to plaintiffs it is affirmed, they paying the costs of both appeals.
The incapacity of the advocate in litigation to make a contract of hiring, affects the integrity and dignity of advocates, and so is in close relation with the highest of human interests, namely, the administration of justice. * * He is trusted with interests, and privileges and powers almost to an unlimited degree. His client must trust to him at times for fortune, and character and life. The law trusts him with a privilege in respect of liberty of speech, which is in practice bounded only by his own sense of duty; and he may have to speak upon subjects concerning the deepest interests of social life, and the innermost feelings of the human soul. * * It is of the greatest importance that this sense of duty should be in active energy proportioned to the magnitude of these interests. If the law is, that the advocate is incapable of contracting for hire, his words and acts ought to be guided by a sense of duty, that is to say, duty to his client, binding him to exert every faculty, and privilege and power, in order that he may maintain that client’s right, together with duty to the court and himself, binding him to guard against abuse of the powers and privileges intrusted to him by a constant recourse to his own sense of right. If an advocate with these qualities stands by the client in time of his utmost need, regardless alike of popular clamor and powerful interest, speaking with the boldness which a sense of duty can alone recommend, we say the service of such an advocate is beyond all price to the client; and such men are the guarantees to communities for the maintenance of their dearest rights, and the words of such men carry a wholesome spirit to all who are influenced by them. Such is the system of advocacy intended by the law requiring the remuneration to be by gratuity; but, if the law allowed the advocate to make a contract of hiring and service, it may be, that his mind would be lowered, and that his performance would be guided by the words of his contract, rather than by principles of duty; that words sold and delivered according to contract, for the purpose of earning hire, would fail of creating sympathy and persuasion in proportion as they were suggestive of effrontery and selfishness, and that the standard of duty throughout the whole class of advocates might be degraded. It may also well be, that, if contracts for hire could be made by advocates, an interest in litigation might be created, contrary to the policy of the law against maintenance, and the rights of attorneys might be materially sacrificed, and their duties be imperfectly performed by unscrupulous advocates ; and these evils, and others that may be suggested, would be unredeemed by a single benefit that we can perceive.”