An Essay on Professional Ethics / Second Edition

by George Sharswood

It is not, however, with the lawfulness, but with the policy and morality of the practice, that we are now dealing. Admitting its legality, is it consistent with that high standard of moral excellence, which the members of this profession should ever propose to themselves?

Let us look at what would be the results of such a practice, if it became general. If these are bad, if its tendency is to corrupt and degrade the character of the profession, then, however confident any man may feel in his moral power to ward off its evil influences from his own character and conduct, he should be careful not to encourage and give countenance to it by his example.

It is one of that class of actions, which in particular instances may be indifferent; but their morality is to be tested by considering what would be the consequences of their general prevalence.

It is to be observed, then, that such a contract changes entirely the relation of counsel, to the cause. It reduces him from his high position of an officer of the court and a minister of justice, to that of a party litigating his own claim. Having now a deep personal interest in the event of the controversy, he will cease to consider himself subject to the ordinary rules of professional conduct. He is tempted to make success, at all hazards and by all means, the sole end of his exertions. He becomes blind to the merits of the case, and would find it difficult to persuade himself, no matter what state of facts might be developed in the progress of the proceedings, as to the true character of the transaction, that it was his duty to retire from it.

It places his client and himself in a new and dangerous relation. They are no longer attorney and client, but partners. He has now an interest, which gives him a right to speak as principal, not merely to advise as to the law, and abide by instructions. It is either unfair to him or unfair to the client. If he thinks the result doubtful, he throws all his time, learning, and skill away upon what, in his estimation, is an uncertain chance. He cannot work with the proper spirit in such a case. If he believes that the result will be success, he secures in this way a higher compensation than he is justly entitled to receive.

It is an undue encouragement to litigation. Men, who would not think of entering on a lawsuit, if they knew that they must compensate their lawyer whether they win or lose, are ready upon such a contingent agreement to try their chances with any kind of a claim. It makes the law more of a lottery than it is.

The worst consequence is yet to be told,—its effect upon, professional character. It turns lawyers into higglers with their clients. Of course it is not meant that these are always its actual results; but they are its inevitable tendencies,—in many instances its practical working. To drive a favorable bargain with the suitor in the first place, the difficulties of the case are magnified and multiplied, and advantage taken of that very confidence, which led him to intrust his interests to the protection of the advocate.[53] The parties are necessarily not on an equal footing in making such a bargain. A high sense of honor may prevent counsel from abusing his position and knowledge; but all have not such high and nice sense of honor. If our example goes towards making the practice of agreements for contingent fees general, we assist in placing such temptations in the way of our professional brethren of all degrees—the young, the inexperienced, and the unwary, as well as those whose age and experience have taught them that a lawyer's honor is his brightest jewel, and to be guarded from being sullied, even by the breath of suspicion, with the most sedulous care.

A gentleman of the largest experience and highest character for integrity and learning at the Philadelphia Bar, thus strongly confirms the views which have been here expressed on the subject of contingent fees: "And further," says Mr. Price in his concluding advice to students, at the close of his Essay on Limitation and Lien, "permit me to advise and earnestly to admonish you, for the preservation of professional honor and integrity, to avoid the temptation of bargaining for fees or shares of any estate or other claim, contingent upon a successful recovery. The practice directly leads to a disturbance of the peace of society and to an infidelity to the professional obligation promised to the court, in which is implied an absence of desire or effort of one in the ministry of the Temple of Justice, to obtain a success that is not just as well as lawful. It is true, as a just equivalent for many cases honorably advocated and incompetently paid by the poor, a compensation may and will be received, the more liberal because of the ability produced by success; but let it be the result of no bargain, exacted as a price before the service is rendered, but rather the grateful return for benefits already conferred. If rigid in your terms, in protection of the right of the profession to a just and honorable compensation, let it rather be in the amount of the required retainer, when it will have its proper influence in the discouragement of litigation."

A lawyer should avoid, as far as possible, all transactions of business with his clients, not only in regard to matters in suit in his hands, but in relation to other matters. He should avoid standing toward them, either in the relation of borrower or lender. A young practitioner should especially avoid borrowing of any one. Let him retrench, seek the humblest employment of drudgery rather than do it; but, if borrow he must, let it be of any one else than a client. All transactions of business between attorney and client are looked upon with eyes of suspicion and disfavor, in courts of justice.

It is a settled doctrine of equity, in England, that an attorney cannot, while the business is unfinished in which he had been employed, receive any gift from his client, or bind his client in any mode to make him greater compensation for his services than he would have a right to demand if no contract should be made during the relation. If an attorney accept a gift from one thus connected with him, it may be recovered in a court of chancery, by the donor or his creditors, should it be necessary for them to assert a right to it to satisfy their demands. When the relation of solicitor and client exists, and a security is taken by the solicitor from his client, the presumption is that the transaction is unfair; and the onus of proving its fairness is upon the solicitor.[54] A man ought to be very careful of placing himself in a position to have any of his transactions regarded in that light. If it should ever come to be canvassed in court, the bandying of the phrases, fraud and presumption of fraud, as applied to him, may, and probably will, have an unfavorable effect on his reputation. Most emphatically should it be said, let nothing tempt him, not even the knowledge and consent of the client, to keep the money, which may have come to his hands professionally, one single instant longer than is absolutely necessary. The consequences of any difficulty arising upon this head, will be fatal to his professional character and prospects.