100 N.J. Eq. 448 | N.J. Ct. of Ch. | 1927
The defendant, Bianchi, obtained a judgment for $2,200 against the complainant in the Essex county court of common pleas, which represented a balance claimed to be due him on a counsel fee, under an express contract, which was denied by complainant.
A bill was filed in this court to restrain the sheriff from collecting the judgment. Application was made for a preliminary restraint and a motion was made to strike out the bill. The matters were heard before Vice-Chancellor Berry, who continued the restraint until final hearing and denied the motion to strike out the bill.
The learned vice-chancellor says in his opinion, reported in
The right to consider the reasonableness of this fee is therefore res adjudicata, as far as this court is concerned.
The defendant contends that it has not been established that any fraud was practiced by the attorney upon the client. This, it seems to me, is not the ground upon which our courts have considered and decided such cases. It is not necessary to show actual fraud. On the broad ground of public policy, the court, because of the fiduciary relation existing between attorney and client, will consider the reasonableness of the fee and the circumstances surrounding the making of the agreement regarding it; and the burden of proof is on the attorney to show the absolute reasonableness of the charge.
In Dunn v. Dunn,
"The transaction must be characterized by the utmost good faith. There must be no misrepresentation and an entire absence of concealment or suppression of any fact within the knowledge of the agent which might influence the principal and the burden of establishing the perfect fairness of the contract is on the agent.
"As I have said above, it is not on the ground of actual fraud that courts interfere, but merely because of the fiduciary relation that is shown to have existed and it not being made to appear that the transaction, whether a gift or contract, was perfectly fair and just. Weeks, in his work on Attorney-at-Law, says: *451
"`The rule is on the ground of public policy, not a fraud, and prevails though the attorney may be innocent of any intention to deceive and act in good faith.'
"Such is the rule in these cases, than which no principle is more universally approved. I must follow it. I think that an application of the undisputed facts to this text sustains the complainant's bill. Mr. Holt in his answer says that the transaction was fair, just, honorable and the like. The above-stated rule of law admits that all this may be, and yet the party asking relief at the hands of a court of equity obtains it, a transaction that would not be questioned, in which one of the parties is not a solicitor is often set aside when one of them is such solicitor."
In Kelly v. Schwinghammer,
Chief-Justice Beasley, in Schamp v. Schenck,
In Lynde v. Lynde,
In Crocheron v. Savage,
Complainant was indicted on two counts — one for arson and one for burning with intent to defraud insurance companies. Bianchi says he told complainant that the charges were serious and that he would defend him for the sum of $2,500. At the trial, the arson charge was dismissed on the ground that the building was uninhabited. The jury disagreed as to the other charge. It also appears that in addition an associated counsel was employed, who was to receive $500. It is contended that complainant agreed to all this. Perhaps this is so, as complainant felt himself to be in a serious predicament and might have been willing to promise anything to escape conviction. But in Porter v. Bergen,
After the first trial Bianchi was discharged and a second trial was had, at which Wilbur A. Mott represented complainant. Mr. Mott, moreover, has an experience of twenty years in criminal matters, and has been assistant prosecutor and prosecutor of the pleas. He was paid $750 for his services and testified that an amount not to exceed $1,000 would be reasonable for all services. Victor D'Aloia, who tried the case for the state, testified that the defense interposed was a simple and ordinary one and that $1,000 would be sufficient. Andrew Van Blarcom, a former assistant prosecutor, agreed substantially with these figures. *453
There was testimony, of course, that Bianchi's charge was reasonable. I believe, however, that the testimony of the witnesses I have mentioned, two of them engaged in the actual trial of this very case, is entitled to the greatest weight. While I concede that "the laborer is worthy of his hire," I think it is the duty of this court to see that attorneys take from their clients only what their services are fairly and reasonably worth. I think, considering the character of the services and the testimony as to them, that $2,500, plus $500 for an assistant, is entirely too high.
I think that Mr. Bianchi should receive $1,200, less $300 already paid, with no allowance for his associate. If he declines to accept this, I will advise a decree restraining the sheriff from proceeding to collect the judgment.