60 Iowa 515 | Iowa | 1883
I. The plaintiffs, who are attorneys at law, sue to recover $3,000, the balance due them for professional services rendered in resisting a claim of the heirs of one Murray McConnell, made before the Department of the Interior of the United States, for a patent of certain lands in the city of Chicago, which, they allege, their ancestor entered at the proper government land office. The sum charged for the services was $4,000, but a payment of $1,000 was made to plaintiffs, for which they gave credit upon their account on which the action is brought.
The answer of defendant denies the allegations of the petition, and avers that plaintiffs have been paid for all services rendered by them for defendant. It is pleaded as a special defense that plaintiffs, prior to their retainer by defendant, had written and approved certain official opinions submitted to the Secretary of the Interior, and one of them, signed by that officer, deciding the matter in controversy touching the issuing of a patent to the lands, against the defendant, which were read upon the hearing of the application for the patent, and quoted against defendant, and that plaintiffs had fraudulently concealed from defendant the fact that they had prepared and approved the opinions, whereby “defendant was greatly prejudiced and put to extra labor and expense in the defense of the case.”
There was evidence upon the trial tending to show that, on the 7th of May, 1831, Robert A. liinzie entered a tract of
In 1836, Murray McConnell entered several thousand acres of land at the Chicago office, including the 6 xtü tract, a part of which is owned by defendant. The entry was made and permitted for the reason that, on account of the change in the land districts above referred to, the land was not subject to entry at Palestine, when Kinzie’s entry was made, which was, therefore, void. McConnell was compelled, through fear of violence from persons who had made prior entries of the land at Palestine, to surrender his duplicates and cancel his entries, excepting the duplicate and entry of the tract of 6 xs-oV acres, which he retained. McConnell claimed that this tract in question, being in another subdivision, was not covered by the Kinzie entry.
McConnell’s entry was canceled by the Commissioner of the General Land Office in 1836. He applied fora patent in 1857, which was denied. In 1874, McConnell having died, his heirs made aj>plication to the Interior Department for a rehearing of the case, on the ground that the former decision was in conflict with the' fact, in holding that the land had not been offered at public sale prior to McConnell’s entry.
May 31, 1875, the decision of the Secretary of the In-
The case, upon this application for a re-examination, came on for hearing in December, 1875, and the plaintiffs were employed by the General Solicitor of defendant to appear in, conduct and argue the case in its behalf. A decision was announced December 20,1875, refusing the application for rehearing. The decision is based upon the fact that the evidence does not overcome the presumption raised by the contemporaneous decision of the Commissioner of the General Land Office, that the land had been offered at public sale, and upon the want of equity in the claim of the heirs, and considerations of public interest, demanding that decisions and ac
The foregoing statements of facts, while brief and omitting many things that appear in the record, is sufficient, with some other facts hereafter to be stated, for the consideration of certain questions arising in the case, involving the rulings of the court in admitting testimony and in giving instructions to the jury.
The court instructed the jury in effect that if plaintiffs did not inform defendant that Smith had prepared the decisions, the fact could be considered by the jury in determining the value of plaintiffs’ services. The admission of the evidence touching these decisions, and the admission of' the decisions themselves, as well as the instructions just referred to, in our opinion are clearly erroneous. The position of counsel of defendant seems to be that as plaintiff, Smith, had, while in office, prepared and concurred in a decision adverse to defendant, it was a fraud upon his part to accept a retainer and render services for defendant, without having disclosed his con
An attorney at law ought not to accept a retainer in a case when he believes that the law is against his client. It is not his duty, in order to subserve the interest of his client, to misstate the law and the facts, and if he be satisfied that the client cannot recover except by perversion of the law and the facts, the attorney ought not to take the case. But the fact that 'an attorney has, under a prior retainer, advocated views of the law and facts different from those upon which his client rests his case, or has officially, as. a judge or officer of the government, held a different view of the law and the rights of the parties, will not of itself disqualify him from accepting a retainer. An attorney has the right and privilege, possessed by all men and all officers and judges, to change his views upon the law and the facts of a case, when reason requires it. It would be absurd to say that a lawyer or judge, having once expressed an opinion upon legal questions, shall never change it, and that a judicial or official decision will forever bind the person announcing it. From the nature of legal questions, which always depend upon the combination of facts for their,correct decision, it is to be expected that lawyers will not always, in their solution, apply the same principles or reasoning. And we doubt not that- it often occurs that in cases upon the same facts lawyers honestly have, at successive periods, different views of the law. Lawyers often go from the bench or other-official position to the bar. It would be absurd to require such, when offered ' a retainer, to review their judicial and official services, in order to advise their clients whether, at a prior time, they had held opinions which might be regarded as unfavorable to their cause, or, if they failed to do this, to subject them to a charge of fraud, which could be set up as a defense to their .claims for bompensation. This is just what defendant insists upon.
Even if the position of counsel for defendant and the court below, that such matters should be considered, be correct, it would rather appear that plaintiffs were not the less able to serve defendant by reason of Smith’s prior concurrence in the decisions of the Secretary. These opinions, doubtless, were entitled to some weight in the final decisions of the case, or at least would direct the thought of the Secretary in the line of their arguments. Now, it is quite plain that if Smith’s personal connection with the decisions gave them any weight, his position on the trial, combatting them, would take from them whatever of strength they derived from his personal concurrence in them. If the Secretary wras improperly influenced by the consideration of Smith’s connection with the case, rather than by his arguments and authorities, it is quite probable that the weight of his views as an officer was weakened by his position as counsel. But we cannot presume that the Secretary violated his duty by considering any such matters. We are required to conclude that he decided the case upon its merits, and was in no manner influenced by the prior views of the counsel.
“The presumption is that the documents and records pertaining to the various proceedings in the matter, as they are stated in this opinion, were the only matters which it was necessary to examine, so far as the facts of the case were concerned. But as plaintiffs were to make an argument in the matter before the Secretary, and as such argument would necessarily relate to the law as well as the facts of the case, it was necessary that they spend time in examining the law of the case. These are matters, then, which you are to consider indetermining the amount of time which it was necessary for plaintiffs to spend in preparing the case for hearing before the Secretary of the Interior.”
We think no presumption arises that the plaintiffs were not in the discharge of their duty required to examine other records or documents than those “recited or indicated” in the
Eor the errors pointed out the judgment of the District Court is
Reversed.