In this country, there is in general no distinction between attorneys and counsellors. The same persons fulfil the duties of both. Hence no difference is made between their right to recover compensation for services in the one capacity or the other.[38] In Pennsylvania, it was held at one time that an attorney could not recover, without an express promise, anything beyond the trifling and totally inadequate sum provided in the fee-bill. That pure and eminent jurist Chief Justice Tilghman thought that the policy of refusing a legal remedy for anything beyond that had not been adopted without great consideration.[39] He stands not alone in the opinion that it has been neither for the honor nor profit of the Bar to depart from the ancient rule.[40] It has been departed from in this State, and the early decision overruled, however; and it must be frankly admitted, that the current of decisions in our sister States is in the same way.[41]
It is supposed that the ancient rule was artificial in its structure, and practically unjust,—that it is wholly inconsistent with our ideas of equality to suppose that the business or profession, by which any one earns the daily bread of himself or of his family, is so much more honorable than the business of other members of the community as to prevent him from receiving a fair compensation for his services on that account.[42] It has been pronounced ridiculous to attempt to perpetuate a monstrous legal fiction, by which the hard-working lawyers of our day, toiling till midnight in their offices, are to be regarded in the eye of the law in the light of the patrician jurisconsults of ancient Rome, when
—— dulce diu fuit et solemne, reclusa
Mane domo vigilare, clienti promere jura,—
and who at daybreak received the early visits of their humble and dependent clients, and pronounced with mysterious brevity the oracles of the law.[43]
These are arguments which are more plausible than sound: they are imposing, but not solid. The question really is, what is best for the people at large,—what will be most likely to secure them a high-minded, honorable Bar? It is all-important that the profession should have and deserve that character. A horde of pettifogging, barratrous, custom-seeking, money-making lawyers, is one of the greatest curses with which any state or community can be visited. What more likely to bring about such a result than a decision, which strips the Bar of its character as a learned profession, on the principle avowed by one court, that it is now a calling as much as any mechanical art,—or by another, in effect, that the order of things is in the present condition of society reversed, and clients are really the patrons of their attorneys? A more plausible reason is that the client is safer from the oppression of extortionate counsel, by putting both upon the equal footing of legal right and obligation. It would appear, however, better that the parties should make an express agreement before or at the time of retainer, or that the amount should be left to the justice of the counsel, and the honor and liberality of the client subsequently. Every judge, who has ever tried a case between attorney and client, has felt the delicacy and difficulty of saying what is the measure of just compensation. It is to be graduated, according to a high legal authority, with a proper reference to the nature of the business performed by the counsel for the client, and his standing in his profession for learning and skill; whereby the value of his services is enhanced to his client.[44] Is then the standing and character of the counsel in his profession for learning and skill to be a question of fact to be determined by the jury in every case in which a lawyer sues his client? How determined, if necessary to the decision of the question? Not surely by the crude opinions of the jurors; but by testimony of members of the same profession on the subject. This never is done; it would be a very difficult as well as delicate question for a lawyer to pronounce upon the standing of a professional brother. The most that can be done is to call gentlemen to say what they would have considered reasonable for such services, had they been performed by themselves. Some may testify up to a very high point, from an excusable, though foolish vanity; others to a very low one, from the despicable, desire of attracting custom to a cheap shop.[45] No one can ever have seen such a cause tried without feeling, that the Bar had received by it an impulse downwards in the eyes of bystanders and the community. The case is thrown into the jury-box, to be decided at haphazard, according as the twelve men may chance to think or feel. He, who narrowly watches such controversies, cannot fail to see that the right of a counsel to enforce his claim for legal compensation is far from being calculated to protect the client from oppression and extortion.
It is not worth while, however, to quarrel with the decision. Let us inquire rather what should be the course of counsel, without regard to it. He certainly owes it to his profession, as well as himself, that when the client has the ability, his services should be recompensed; and that according to a liberal standard.[46] There are many cases, in which it will be his duty, perhaps more properly his privilege, to work for nothing. It is to be hoped, that the time will never come, at this or any other Bar in this country, when a poor man with an honest cause, though without a fee, cannot obtain the services of honorable counsel, in the prosecution or defence of his rights. But it must be an extraordinary—a very peculiar case—that will justify an attorney in resorting to legal proceedings, to enforce the payment of fees. It is better that he should be a loser, than have a public contest upon the subject with a client. The enlightened Bar of Paris, have justly considered the character of their order involved in such proceedings; and although by the law of France, an advocate may recover for his fees by suit, yet they regard it as dishonorable, and those who should attempt to do it, would be immediately stricken from the roll of attorneys.[47]
Regard should be had to the general usage of the profession, especially as to the rates of commission to be charged for the collection of undefended claims. Except in this class of cases, agreements between counsel and client that the compensation of the former shall depend upon final success in the lawsuit—in other words contingent fees—however common such agreements may be, are of a very dangerous tendency, and to be declined in all ordinary cases. In making his charge, after the business committed to him has been completed, as an attorney may well take into consideration the general ability of his client to pay, so he may also consider the pecuniary benefit, which may have been derived from his services. For a poor man, who is unable to pay at all, there may be a general understanding that the attorney is to be liberally compensated in case of success. What is objected to, is an agreement to receive a certain part or proportion of the sum, or subject-matter, in the event of a recovery, and nothing otherwise.
It is unnecessary to inquire here whether such a contract is void as champertous, and contrary to public policy. None of the English statutes on the subject of champerty have been reported as in force here; but it was once a question whether it was not an offence at common law, independently altogether, of any statute enactment. Enlightened judges in several of our sister States have so considered it. "The purchase of a lawsuit," says Chancellor Kent, "by an attorney, is champerty in its most odious form; and it ought equally to be condemned on principles of public policy. It would lead to fraud, oppression, and corruption. As a sworn minister of the courts of justice, the attorney ought not to be permitted to avail himself of the knowledge he acquires in his professional character, to speculate in lawsuits. The precedent would tend to corrupt the profession, and produce lasting mischief to the community."[48] "This is not the time nor place," says Chief Justice Gibson, "to discuss the legality of contingent fees; though it be clear that if the British statutes of champerty were in force here, such fees would be prohibited by them. But a contract of the sort is certainly not to be encouraged by implication, from a questionable usage, nor established by less than a positive stipulation."[49] A contract to allow a compensation for services in procuring the passage of a private Act of Assembly, has been held to be unlawful and void, as against public policy.[50] "The practice," said Judge Rogers, in delivering the opinion of the court, "which has generally obtained in this State, to allow a contingent compensation for legal services, has been a subject of regret; nor am I aware of any direct decision by which the practice has received judicial sanction in our courts." The case of Ex parte Plitt,[51] however, recognizes fully the lawfulness of contingent fees, though in his opinion Judge Kane says: "It is not a practice to be generally commended, exposing honorable men not unfrequently to misapprehension and illiberal remark, and giving the apparent sanction of their example to conduct, which they would be among the foremost to reprehend. Such contracts may sometimes be necessary in a community such as that of Pennsylvania has been, and perhaps as it is yet; and when they have been made in abundant good faith—uberrima fide—without suppression or reserve of fact or exaggeration of apprehended difficulties, or under influence of any sort or degree; and when the compensation bargained for is absolutely just and fair, so that the transaction is characterized throughout by 'all good fidelity to the client,' the court will hold such contracts to be valid. But it is unnecessary to say, that such contracts, as they can scarcely be excepted from the general rule, which denounces as suspicious the dealings of fiduciaries with those under their protection, must undergo the most exact and jealous scrutiny before they can expect the judicial ratification." Finally, the question of law may be considered as at rest in Pennsylvania by the decision of the Supreme Court in Patten v. Wilson,[52] which recognized an agreement between counsel and client to pay him out of the verdict as an equitable assignment, and gave effect to it as against an attaching creditor.