Petitioner seeks by writ of mandate to compel the Superior Court of San Mateo County to make an order substituting Robert E. Hatch as her attorney, in place of J. E. McCurdy, in a pending action for personal injuries wherein she is plaintiff. The action has not yet been brought to trial.
Subdivision 1 of section 284, Code of Civil Procedure, provides for substitution of counsel “upon the consent of both client and' attorney, filed with the clerk, or entered upon the minutes”. Subdivision 2 provides for substitution “upon the order of the court, upon the application of either client or attorney, after notice from one to the other”. In 1935 there was added to subdivision 2 a further provision, as follows: “except that in all civil cases in which the fee or compensation of the attorney is contingent upon the recovery of money, in which case the court shall determine the amount and terms of payment of the fee or compensation to be paid by the party.” The contract under which peti *371 tioner employed McCurdy provided for compensation in the amount of one-third the recovery by judgment or settlement.
Petitioner contends that the 1935 amendment is special legislation and therefore unconstitutional in that there is no reasonable distinction in the matter of determining attorney’s fees between cases where the fee is “contingent on the recovery of money” and other cases. By this proceeding she seeks to compel the trial court to order a substitution without fixing the fee of her discharged attorney, leaving that matter to be determined in a separate action. She further contends that the amendment is unconstitutional for the reason that it denies a jury trial in the determination of the attorney’s fee. The decision of the Appellate Department, Superior Court of Los Angeles, in
Cassel
v.
Gregori,
28 Cal. App. (2d) (Supp.) 769 [
Respondent contends that since the petitioner, rather than her attorney, asked for the substitution under section 284 she may not question the constitutionality of any part of said section, but must accept it in its entirety. The principle for which respondent contends, although frequently invoked, is not of invariable application. Thus, in
Mojave River Irr. Dist.
v.
Superior Court,
In the instant case, as in the cited case, the statute has stood for years without the amendatory provision, which, if unconstitutional, is plainly severable. Furthermore, the right to an order of substitution would exist without section 284. The English common law recognized the right of a client to change his attorney by court order.
(MacPherson
v.
Rorison,
(1779)
Petitioner did not aver in her notice of application for change of attorney that she had cause to discharge attorney McCurdy. But the right to change attorneys, with or without cause, has been characterized as “universal”. (
Section 284, Code of Civil Procedure, providing for a court order of substitution, has been a part of our statutory law since the enactment of the codes in 1872. But in the absence of statutory provision the courts would have inherent power to make such an order, which is necessary to the orderly conduct of litigation. Indeed it was held in England at an early date that a substitution was not effective unless based on court order. (English cases cited,
supra.)
This doctrine prevails in this state.
(Jacobus
v.
Jacobus,
Respondent relies on
Foster
v.
Superior Court,
26 Cal. App. (2d) 230 [
In many jurisdictions it is the rule that where the client discharges the attorney without cause, the court may make substitution conditional on the client compensating his attorney.
(Griffith
v.
United States,
72 Fed. (2d) 466;
Woodbury
v.
Andrew Jergens Co.,
69 Fed. (2d) 49;
In re Weitling,
The 1935 amendment limits the right of the attorney to have his fee determined in the main action, and to have substitution made conditional on payment, to the class of cases in which the fee is “contingent upon the recovery of money”.
The rule prescribed by the amendment also differs from that prevailing in other jurisdictions in that it is, in terms, mandatory. Other jurisdictions recognize a discretionary right in the court upon ordering substitution, to postpone the matter of attorney’s fees to subsequent determination in the main action or in an independent suit.
(Marshall
v.
Romano,
10 N. J. Misc. 113 [
It is settled in this state that where a cause is pending an appeal, substitution is to be effected by order of the appellate court. (Wright v. Security First Nat. Bank, supra; Jacobus v. Jacobus, supra.) Hence the effect of the 1935 amendment is to impose on the appellate courts the burden of determining, in the first instance, disputes between attorneys and clients in cases pending on appeal.
This brings us to petitioner’s main contention, that the amendment is special legislation and therefore unconstitutional in that it requires the client to submit to determination of his discharged attorney’s fee in the main action in those eases only where the fee is “contingent upon the recovery of money”. In Cassel v. Gregori, supra, the Appellate Department, Superior Court of Los Angeles County, upheld this contention, Judge Shaw writing the opinion, as follows:
“ . . . passing by the question whether contingent fee cases as a whole would constitute a separate class justifying special provisions regarding attorney’s fees, we entertain no doubt that the special classification of contingent fee cases made by this statute is arbitrary and invalid. The probable purpose of the amendment ... is to protect attorneys who have contingent fee agreements from possible efforts of their clients to dismiss them without payment of fees. For this *375 purpose, no substantial difference exists between a case where the contingency depends on the payment of money and many other contingency cases. The contingency may be the recovery of property other than money; and granting that in such a case, where the attorney’s fee is to be a share of the property, he may have an interest in that property which he can follow (Kelly v. Smith, (1928)204 Cal. 496 , 500 [268 Pac. 1057 ]), and is then not so much in need of protection, yet there are many other possible contingencies not covered by the statute. Even where recovery of property is the contingency, the fee may not be a share of that property; and the contingency may be the successful defense of an action or the establishment of the client’s rights with no recovery at all. If the attorney needs protection against his client, why should he not have it in these cases, as well as in that covered by the statute?”
The court concluded its discussion with the statement that there was no natural, intrinsic or constitutional distinction justifying such discrimination and that the amended portion of the statute was, therefore, void. We are in accord with this conclusion.
It cannot be said that contracts for an attorney fee contingent on the recovery of money are usually entered into with clients who are without funds, and hence employment under such contracts calls for special protection of the attorney through authority in the court to make substitution dependent upon payment of the reasonable value of his services to date, since one of the most common instances of employment under such contracts is in connection with claims! for personal injuries, where employment is frequently under such a contract regardless of the financial status of the client.
An attorney discharged without cause may recover the reasonable value of his services to date in an action brought for that purpose.
(Kirk
v.
Gulley,
It is unnecessary here to consider petitioner’s contention that the 1935 amendment is unconstitutional for the additional reason that it denies a jury trial. Said section would seem to contemplate that the court sitting without a jury should determine the attorney’s fee. Where substitution pending appeal is made in an appellate court this would necessarily be so, since a jury does not exist as an adjunct of our appellate courts. The right of trial by jury is guaranteed by our Constitution (art. I, sec. 7) only in those cases where it existed at common law.
(Pomeroy
v.
Collins,
It follows that petitioner is entitled to an order of substitution without determination of the compensation to which her attorney may be entitled. Let the writ of mandate issue as prayed for.
Shenk, J., Curtis, J., Langdon, J., Edmonds, J., and Houser, J., concurred.