Merritt v. Lambert

10 Paige Ch. 352 | New York Court of Chancery | 1843

The Chancellor.

The weight of evidence in this case, as to the terms of the agreement concluded between the appellant and Anderson, taking the affidavit of 'the appellant into consideration, unquestionably is that Anderson agreed that Wallis should have all the rents and profits of Loubat’s lot pending the suit, for attending to the defence for his benefit. And as the respondent has thought proper to make a summary application to this court to exercise its jurisdiction over its officer, to compel him to do justice to his client, instead of bringing a suit at law for money had and received to his use, the solicitor is entitled to the benefit of his own affidavit in resisting this application. And had Anderson been authorized by Loubat to make such an agreement as is detailed in the affidavit of Wallis, and if that agreement was such an one as this court could uphold, when made between one of its solicitors and his client whose rights were in litigation here, the vice chancellor should have dismissed the petition, upon the affidavits which were before him. I think the agreement, however, is such an one as this court cannot permit one of its solicitors to make with his client; and that the vice chancellor was right in supposing that the appellant was only entitled to his taxable costs, as between solicitor and client, and his reasonable counsel fees in the cause, notwithstanding the alleged agreement. Indeed, I think the order appealed from is more liberal than it ought to have been, in charging the respondent with the whole costs and counsel fees from the commencement of the suit, which was instituted long before Loubat had any interest in the property. That part of the costs of the defence w'as more properly chargeable upon Lambert, upon whose credit and for whose sole benefit the services were performed, than upon the rents and profits of Loubat’s lot, which accrued afterwards ¿ and which rents and profits Wallis obtained from the receiver, with full knowledge that they did not belong to Lambert the defendant.

The principles upon which the court proceeds, in cases of this kind, are stated with great clearness by Lord Hard-wick in the case of Walmesley v. Booth, as reported by Sergeant Barnardiston. (Barn. Ch. Rep. 478.) He there says, attorneys and solicitors are to be considered as public officers and ministers of justice. Upon this ground it is that in courts both of law' and equity they have stated fees allowed them for their services, and are under the government of the several courts in regard to their behavior to their clients. The courts exercise a much larger authority over them, and interfere much more in contracts which they make with their clients, than they do in "other cases. For which reason it is that courts, both of law and equity, and especially the courts of law, have certain rules in order to regulate the behavior of these persons, both with regard to their method of proceeding and to the satisfaction which they are to receive from their clients. Attorneys and solicitors, when they have accepted retainers from their clients, are bound to serve them for the stated fees which are allowed by the several courts. And if an attorney extorts more money from his client than the courts allow of, or makes a contract with his client to have more money, the courts will give relief. These principles were acted upon by Lord Hardwick in the subsequent cases of The Drapers Company v. Davis, (2 Atk. Rep. 295,) and Saunderson v. Glass, (Idem, 298.) Sayer also refers to a manuscript case in the king’s bench, in Hilary term, 32 George 2d, where an attorney had agreed with his client to be paid for his time at a certain rate by the day, and to be allowed the expenses of a post chaise. And the question was, whether the client should be bound by the agreement. The court decided that he should not; and referred the attorney’s bill for his services to be taxed. (Sayer’s Law of Costs, 321. See also Hob. Rep. 117.) Such continues to be the settled principles upon which all the courts in England proceed, in regard to contracts between attorneys and solicitors and their clients relative to their compensation for professional services previous to the termination of the litigation in which the client is engaged. (Middleton v. Wells, 1 Cox’s Ch. Cas. 112. 4 Bro. P. C. Toml. ed. 245, S. C. Newman v. Payne, 4 Bro. C. C. 350. Aubrey v. Popkin, 1 Dick. Rep. 403. Kenny v. Brown, 3 Ridg. P. C. 472. Crossley v. Parker, 1 Jac. & Walk. Rep. 440.)

The same principles are recognized by our courts, so far as they are applicable to the situation of the profession in this country. In England, the duties of attorney, or solicitor, and counsel are always performed by different persons ; and of course the attorney or solicitor cannot be permitted to stipulate for any greater compensation for his services than such as are allowed by the practice of the courts, of by the tariff of fees fixed by law. The same rule prevails here, so far as relates to the mere services of an attorney or solicitor. But as most members of the profession practice in the capacity of counsel, as well as in that of solicitor or attorney, if the client agrees with his solicitor or attorney to perform the duty of counsel also, upon the hearing or trial of the cause, or upon the argument of motions or petitions, the latter, in his character of counsel, may stipulate for a reasonable reward for his services as such counsel. And he is not limited to the counsel fees specified in the fee bill, and which are allowed as between party and party. (Adams v. Stevens & Cagger, 26 Wend. Rep. 451.) But he is not permitted, either as attorney or solicitor, or as counsel, to contract with his client, previous to the termination of the suit, for a part of the demand, or subject matter of the litigation, as a compensation for his services. (Thurston v. Percival, 1 Pick. Rep. 415. Livingston v. Cornell, 2 Mart. Louis. Rep. 281. Key v. Vattier, 1 Ham. Rep. 132. Rust v. Larue, 4 Littel. Rep. 411. Caldwell’s adm. v. Shepherd’s heirs, 6 Mon. Rep. 389. In Re Beakley, 5 Paige’s Rep. 311.) Here the contract which the solicitor says he made with his client, pending the litigation, (for Loubat having purchased pendente lite, with or without actual notice of the suit, must for the purposes of this application be considered a real party to the litigation,) was in effect that he should have all the rents and profits of Loubat’s lot, for his professional services, if he succeeded in the defence of the suit. And the right to those rents and profits was a substantial part of the litigation.

Again ; the alleged agreementwas void as being contrary to public policy, as it placed the interest of the solicitor directly in conflict with his paramount duty to his client. For the longer the decision of the suit was delayed, the greater would be his compensation in case he finally succeeded in the defence. His interest, therefore, was to use all the means in his power to prevent the cause from being put in readiness for a hearing and brought to a speedy termination ; while his duty to his client required that the final decision in the cause should be obtained with the least possible delay. And no court which has a due regard for the rights and interests of its suitors can sanction an agreement which puts the interest and the duty of an attorney or solicitor in opposition to each other.

The order appealed from must be affirmed with costs.