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Annual report of the Pennsylvania Bar Association, Volume 16 online

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is anything improper or illegal about it, and I do not think
that the Legislature can make that illegal which is inherently
legal. I think it is purely a legal question.

Be that as it may, I do not think this Association ought
to pass a bill which, as far as my opinion goes, if I did not
know the high character of the gentlemen of this Committee,
I would have supposed was drafted by some casualty law-
yer for the purpose of discouraging litigation against cor-
porations. I think the whole object of the bill is shown
by this very fact, that the bill omits from its provisions all
contingent fees, as Mr. Budd has well said, in cases where
the lawyer brings suit on contract, or any form of action
other .than trespass. If we are a profession of rascals, we
are just as likely to take advantage of our clients where wc



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314 DISCUSSION OF THE REPORT OF THE

represent a poor woman in the Orphans' Court seeking a
proper share of her husband's estate, or in land damage
cases, or in numerous cases, where we cannot take con-
tingent fees, as in representing our clients in an action of
trespass. The very idea, that we should assume that we are
all dishonest!

What is the measure which is proposed ? It is proposed
that, after a lawyer has dealt in good faith with his client,
his client presumably seeking him and not he his client, has
arranged in advance the terms upon which he is to take the
case; he is then required to undergo the humiliation of filing
a copy of the contract in the record of the Court, where it is
open to everybody; and after he has succeeded in obtaining
a judgment, and that judgment has been affirmed by the
Supreme Court, he is then to undergo the humiliation of
having a Judge supervise his arrangement with his client.
Now, how can a Judge do that properly? You know the
compensation which a lawyer is entitled to, which he gener-
ally receives, is not measured by the same general rule that a
baker measures that which he is to get for his bread. The
work of a lawyer is so complex, it is impossible for a Judge
to pass with any justice on the lawyer's fees; and cannot
do it at all unless in any case where the amount recovered
is so much, so much is to be allowed, and where it is more,
so much. And what would be the relation between the law-
yers and the Bench, if the Bench was delegated such a
power? Can a lawyer properly in a case defend his client's
rights, and his own rights from usurpation on the part of
the Bench, if he knows that the same Judge can pass on the
question of the fee, and arbitrarily decide whether a thou-
sand dollars or a hundred dollars or fifteen dollars shall be
the fee? Why, instead of a fearless, independent Bar, we
would have a Bar of professional sycophants, always fawn-
ing on the Bench, because we would be afraid the Bench
would take advantage of us the first opportunity it got. I



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SPECIAL COMMITTEE ON CONTINGENT FEES 315

protest against the passage of this bill, and its insult to the
Bar.

George W. Carr, Philadelphia: I desire to move to
amend Section 2, which, as it stands, does not clearly show
from whom the attorney shall recover his fees, if a settle-
ment has been made by the plaintiflf without his knowledge.
As it stands the Court might construe the Act to mean that
he shall recover them from the plaintiff. I, therefore,
move to amend the section by inserting somewhere the
words "from the defendant," so as to show clearly from
whom recovery for the fees shall be had.

John B. Colahan, Jr., Philadelphia: On behalf of
the Committee, I accept that amendment.

Edwin M. Abbott, Philadelphia: The question
which is before us this morning seems to me to be one
which is so grave and so large that we have lost sight of
what is the third party to the whole question, the third side
of the triangle. We have considered first, the relation
between the client and the lawyer, and secondly, the rela-
tion of the lawyer to the defendant, but there is a third side
to the triangle, and that is the relation between the defend-
ant company or corporation, or individual, as the case
might be, and the persons who may be injured. It is this
third condition which we all know exists that made the
case of the contingent fee as it exists to-day. If it were
not probably for the fact that the poor man needs a lawyer,
and that he secures one through the agency of the contin-
gent fee, and that through the agency of the contingent fee
he is enabled to secure experts the same as the defendant
company is, and that he is enabled to procure medical
assistance the same as the defendant company have their
medical advisers, and that it is through the contingent fee
that the whole subject of the presentation of a case for the
plaintiff is made possible for the poor man, as the company
can defend it with their unlimited resources — it is probably



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3l6 DISCUSSION OF THE REPORT OF THE

this condition which has brought about the question of con-
tingent fees. But the point which I have in mind, and
which if this matter is to be taken up and either passed
upon or sent back to the Committee should be considered,
is the relation between the corporation as it exists to-day
and the person who is injured; as we all know that, within
a few seconds from the time an accident occurs, the poor
man is taken in an ambulance and removed to a hospital,
and no one knows who his witnesses might be, while the
agents of the corporation or the individual defendant are
there upon the spot, and they have all of the agencies to
secure that which they need beyond that, while the injured
man lies either in the hospital or in his home, and some-
body comes to him, and within twenty-four hours his
rights, whatever they may be, however ijrave the injury
which has come to him, are signed away for a paltry pit-
tance, and he is left without any redress, and then, as we
know, when his case is tried in Court, we are met face to
face with a release signed by him, and kept under cover
until the last moment. Therefore, while this matter is
under consideration, I present to you the following amend-
ment: Section 4 shall read Section 5, and Section 5, read
Section 6, and a new section, as follows, shall read Section
4: "In every cause wherein the action is founded on tres-
pass, and whereby the injured or aggrieved party has a claim
to recover damages for personal injuries against a corpo-
ration, partnership or individual, any release executed by
the injured or aggrieved party within thirty days of the
date of the cause of action shall be void."

The Vice President: The Chair rules the amend-
ment out of order, as not being germane to the subject now
under consideration.

Edwin M. Abbott, Philadelphia : I appeal from the
ruling of the Chair.

John B. Colahan, Jr., Philadelphia: I think, in
view of the position that the debate has taken — I begged



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SPECIAL COMMITTEE ON CONTINGENT FEES 317

my friend Mr. Simpson not to intervene — that if the bill
was recommitted we might have the benefit of the wisdom
of the gentlemen here — I think now we have reached the
time that probably the bill had better be recommitted. I
think a great deal of what has been said by the gentleman
who just took his seat. I think there is a consideration
that probably we have omitted. It has been our earnest
endeavor to cover all sides of this question, and I have
felt that if this thing was taken up on this floor, we could
come back next year with a bill that would satisfy, not
everybody, but nearly everybody; and I, therefore, take
this opportunity to move a recommittal.

J. McF. Carpenter, Allegheny: I would not object
to anything that Mr. Simpson or Mr. Colahan desires,
provided I could agree with them. I want, however, to
say this; I am conservative, I believe in going slowly, but
it seems to me that the habit of this Association is to post-
pone and postpone. The Legislature meets before this
body can meet again, and then it does not meet for two
years. Now, are we not just wasting valuable time? The
matter which the gentleman just spoke of might be put
into a separate Act, for it has nothing to do with this Act.
Let us get down to business, and test this Act just as the
Committee has presented it, with the modifications or
amendments suggested.

Thomas J. Meagher, Philadelphia: I agree with the
gentleman who has just spoken. This is a matter we ought
to deal with now. But it seems to me that Mr. Dougherty
has struck the keynote of this matter. I was impressed
yesterday — and the good sense of the body was against
me in it — that we should not go before the community as
if we were men who needed schoolmasters. It seems to
me to be very plain, gentlemen, that the Bar of Pennsyl-
vania has its integrity, as it always had its integrity. Is it
possible that we reed this sort of regulation? Is it pos-
sible that we need to go before the community and say that



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3l8 DISCUSSION OF THE REPORT OF THE

we are a lot of precious rascals? I do not believe it, for
one. I think this constant agitation is not only unwise, but
I think it is positively immoral, because it proceeds upon
ground that is untrue; and anything untrue is immoral
What is the situation with respect to contingent fees? I
cannot take up this Act section by section, but in sub-
stance it is this — without a situation rendering it neces-
sary, without giving a man notice — for notice is not even
required by this Committee, but because, forsooth, after a
case is ended, and after a fee is collected, the Court, accord-
ing to the language of this Act, can fix the fee, after the
event and without even giving counsel concerned notice.
Is that due process? 'Would any constitutional lawyer in
this body say that is due process? But I care nothing
about the language. I could say, again, that they disre-
gard the fact that the Superior Court has no jurisdiction
in cases of disbarment under existing statute law in this
Commonwealth. But I care naught for that. I take the
broader, higher ground that this whole thing is conceived
in an improper spirit, and I say that not because I have
not the highest respect for all the gentlemen on that Com-
mittee, because I do entertain the highest respect for all
of them, and they know I entertain it. But what about
poor litigants? What about people who make contingent
fees necessary? As some gentleman said on the floor^
there are many members of this Association who have
never entered into a contract. I have tried a few negli-
gence cases, and I never took a contract in my life in
writing, and I would not do it, any more than any of the
honorable gentlemen who have spoken here would do it.
And is it that we have gotten so low, that we have gotten
into the sewers of human degradation, where the lawyer
and the client cannot trust each other? Is that possible?
Are you going seriously to debate such a proposition? To
me the whole thing is utterly absurd, and utterly incom-
prehensible. What about contingent fees? I hope I do



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SP£CIAL COMMITTEE ON CONTINGENT FEES 319

not shock any man when I say that I take contingent fees,
and I hope I shall have an opportunity to take many more.
Is there any protest from the clients? Have the clients
come before this Committee, and said, "Why, we have
been badly dealt with; lawyers have robbed us"? I
have heard no complaint from that source. I have heard
complaints from other sources, which I do not think, how-
ever, have affected the Committee in recommending this
Act. But, is not the whole thing conceived in an utterly
improper spirit? Why do we need contracts to have this
matter dealt with? Look at the opportunities for black-
mail. Most times, after a case is tried, clients are dissatis-
fied, and have said, I do not think the lawyer really did
very much. Is it possible that the lawyer is to be brought
into Court, and have it said he did not give his client a copy
of the contract? Shall my client be permitted to go into
Court and say, "Why, Meagher did not give me a copy of
that contract," and, therefore, according to the terms of
this Act, he is to have no compensation? Are you going
to put that power in the hands of an unscrupulous client?
That is what the Act does. And who is to say what proper
solicitation is? Some of us suffer because of the fact
that we are not commercial enough to adopt methods that
are current. But who is going to say what improper solici-
tation means. If a friend of mine says to a man who needs
a lawyer, "I think pretty well of Mr. Meagher," perhaps
that, in the minds of those who know my lack of ability, is
improper solicitation. Then again, is Mr. Leaming to be
put in the same class as myself? Every man appreciates he
is the best negligence lawyer in Pennsylvania. If a man
goes to him and agrees to give him fifty per cent., I say that
is better than agreeing to give Tom Meagher five per cent.
And yet what is that situation? How are you going to
determine these questions? Is a lawyer's standing not to
be though of or regarded? Why, gentlemen, to my mind,
as I said at the beginning of this debate, you are practically



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320 DISCUSSION OF THE REPORT OF THE

saying to the community, **Although I am a lawyer, I am
not a gentleman."

Frederick S. Drake, Philadelphia: If it is true
that we have members of the Bar, who ought not to be
members of the Bar, what is our Board of Censors for?

The Vice President: This bill has nothing to do
with a board of censors, and the discussion must be con-
fined to the bill before the house.

Frederick S. Drake, Philadelphia: I am discuss-
ing this bill, but I say that there is no necessity for such
an Act of Assembly, because if there is any abuse which
requires correction, we have the remedy in our own hands.
If there are members of the Bar doing that which they
ought not to do, they can be corrected.

Alex. Simpson, Jr., Philadelphia: I renew my mo-
tion to recommit.

Thomas J. Meagher, Philadelphia: I offer as a
substitute for that, that the Pennsylvania Bar Association
deem it inexpedient to discuss the subject of contingent
fees.

Duly seconded.

Francis Fisher Kane, Philadelphia: I have al-
ready spoken once, and I have very little to say. The new
motion, as I understand it, is that this Association closes
its mouth as to the question of whether we should talk over
contingent fees and their abuses. I cannot imagine the
Association stultifying itself to such a degree, and, there-
fore, I will not say another word about it. I cannot imag-
ine that.

The question being upon the motion that this Asso-
ciation deems it inexpedient to discuss the subject of con-
tingent fees, and a division being called for, there were
thirty-one yeas and seventy-five nays, whereupon the Chair
declared the motion not agreed to.



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SPECIAL COMMITTEE ON CONTINGENT FEES 32"!

J. McF. Carpenter, Allegheny: I withdraw my ob-
jection to Mr. Simpson's motion. I said I always had diffi-
culty to agree with him, unless his opinion was my own.

The Vice President: What is Mr. Simpson's
motion ?

Alex. Simpson, Philadelphia: That the matter be
referred back to the Committee, for further consideration.
Duly seconded, and agreed to.

Francis Fisher Kane, Philadelphia: May I make
a motion, which is that Mr. Abbott's amendment be also
referred to the Committee. I think it was a very good
suggestion.

Duly seconded, and agreed to.

Francis Fisher Kane, Philadelphia : I beg to offer
the following resolution :

Resolved', That the Pennsylvania Bar Association ask the
Legislature of Pennsylvania to authorize the appointment of a
Commission to inquire into the working of the present law regu-
lating the liability of employers for industrial accidents; the com-
parative justice, merits and defects of the laws of other States
and countries relating to the subject, as well as the causes of
such accidents ; with power in said Commission to recommend such
new law or laws as it may deem wise, having due regard to the
constitutionality of the same, to the end that the defects in our
present la^f s, if any be found to exist, may be effectively remedied.
Said Commission to be appointed by the Governor, and to consist
of three members of the Senate and three members of the House
of Representatives of the State of Pennsylvania, two leading
employers of labor, two members of trade organizations to repre-
sent the workmen of Pennsylvania, an expert in the science of
political economy, and a representative of the charitable organiza-
tions of the State, familiar with the conditions of wag« earners
and the unemployed, such an appropriation of money from the
State Treasury being made for the expenses of the said Commis-
sion as may be necessary in order that it may be able to do its
work thoroughly and effectively.

Duly seconded, and agreed to.
On motion, adjourned.
21



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332 UNFINISHED BUSINESS

THIRD DAY, AFTERNOON SESSION

Thursday, June 30, 1910.

The Association reassembled at 3 o'clock p. m., Vice-
President Clement in the Qiair.

The Vice President : The Association will come to
order. The first item of unfinished business this afternoon
is the report of the Special Committee on Road Laws.
That Committee has made no report. What is the pleas-
ure of the Association in regard thereto?

Alex. Simpson, Jr., Philadelphia: Unless there is
some member of that Committee present to speak for it,
I would like to say that there seems to me no reason why
the Committee should be retained. The subject committed
to it is not one fairly within the purview of the Association.
I would move, therefore, that the Committee be discharged
from further consideration of the subject.

Duly seconded, and agreed to.

The Vice President: The next item of unfinished
business is the consideration of the report of the Special
Committee on the Attorney-Generars Department.

The Secretary: The Attorney-General reported at
the first session of this meeting that he desired additional
time.

John B. Colahan, Jr., Philadelphia: I move that
the Committee l^e continued, with instmctions to report at
the next annual meeting of the Association.

Duly seconded, and agreed to.

The Vice President: The next item of unfinished
business is the consideration of the report of the Special
Committee on Digesting of Statutes.

The Secretary: That Committee was continued,
on motion of Mr. Hensel, at the time of the presentation
of its report.



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' PENNSYLVANIA BAR ASSOCIATION 323

The Vice President: The next item of unfinished
business is the consideration of the report of the Special
Committee on the Judiciary Department.

Thomas S. Brown, Chaimian, Allegheny: The re-
port of this Committee has been printed, distributed, and
in your hands for some days. The Committee, however,
since printing the report, has concluded to amend one fea-
ture of it, or some of the expressions therein contained,
and I wish to have that amendment made and noted. Near
the beginning of the report occurs the sentence, "A Judge, to
be elected must first be chosen and then supported as the
candidate of a politicaUparty ; or if he runs on a so-called
independent ticket, it is usually after he has sought, and
failed to secure, the nomination of one of the parties."

That seems to have an invidious meaning, which is
not intended at all by the Committee. We, therefore, wish
to amend the sentence by striking out the latter part of it,
and inserting the words, **in the usual and ordinary condi-
tions/' after the word "first," so that the sentence will read :

*'A Judge, to be elected, must first, in the usual and
ordinary conditions, be chosen, and then supported, as the
candidate of a political party."

As thus amended, I move the adoption of the report
of the Committee.
Duly seconded.

Thomas S. Brown, Allegheny: I do not wish to
take up time in going over the discussion of the subject con-
tained in this report and presenting it anew. I simply
wish to call the attention of the members of the Associa-
tion to the recommendations in the report. The reason
Avhy those recommendations are made are set forth in the
body of the report, and have probably Ijeen read by some,
and perhaps by many of you. Whether they sustain the
recommendation sufficientlv to induce the Association to



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324 DISCL'SSIOX OF Tin-: REPOKT OF TilK

adopt the report, or whether the Association will take
other action is for you to say. The principal recommen-
dation is this, that, for the reasons set forth in the report,
it is the judgment of the Committee that the Common Pleas
Judges and Orphans' Court Judges of this Commonwealth
should not be eligible for re-election, that they should be
confined to one term, in order that thereby the improper
and undesirable influence of politics may be eliminated, or
at least minimized to the greatest extent. But not being
eligible for re-election, if the term were left at ten years,
as it now is, the office would not be sufficiently attractive
to the kind of lawyers whom we wish to have fill it. We,
therefore, suggest that the term should be lengthened to
the period of twenty-one years, the same as that of the
Supreme and Superior Court Judges; and further, that
there should be provided for all Judges of this Common-
wealth a pension after they have served their full term,
and are past the age of sixty-five years. This, howeyer,
would not mean that a Common Pleas Judge, for example,
would be ineligible for promotion to the Appellate Courts.
That is the principal, primary recommendation of the re-
port.

Then the report discusses the powers vested in the
Judges of appointment to certain offices, and this consti-
tutes one of the main difficulties of the situation so far as
the influence of politics upon the judiciary is concerned.
For the reasons set forth in the report, this Committee
ciocs not recommend any change to be made in that respect.
However, it is our belief, as well probably as the belief of
everyone else, that the appointments to office, which are of
an administrative character, proi>erly l>elong to the execu-
tive department, and ought not to be in the hands of the
Judges if it could be avoided. But from the fact, and for
the reason, that there does not seem to he any likeli-
hood of the substitution of other tribunals or powers to
make those appointments, which would be satisfactory to



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SPECIAL COMMITTEE ON JUDICIARY DEPARTMENT 325

the people of the Commonwealth, we think it would be
better to leave that as it is, but recommend that the senti-
ment and influence of this Association should be directed
against any extension of these powers, excepting the ap-
pointment of officials directly connected with the conduct
of the business of the Courts.

The next point taken up is the question of liquor
licenses, the granting of which is now vested in the Judges
of the Quarter Sessions. The judgment of the Committee
also is that that function should be vested somewhere else,
if practicable, and that it is a burden and snare to the judi-
ciary; but, until we have further light upon the subject,
we fail to see where else to place it in a manner satisfac-
tory to the people of this Commonwealth. We, therefore,
recommend that this Association appoint another Commit-
tee to consider this subject, and report at the next meeting
of the Association.

I should, however, also refer to the Minority Report
by Mr. Budd, which is also before the Association. As I
understand that report, it practically agrees with the report
of the majority, except as to any extension in the term of
the judicial office, and it positively recommends taking away
from the Judges of the Common Pleas Courts all powers of
appointment outside of strictly Court officials, and also tak-
ing away from them jurisdiction in the matter of liquor
licenses, but does not offer anything in the way of a substi-
tute tribunal for the exercise of the power of licensing the
sale of liquor in the event of its being taken away.

John B. Colahan, Jr., Philadelphia: It seems to
me that just now, at the close of our meeting, is a very
unfortunate time to consider a subject so important as this;
and, if it does not conflict with the desires of the Commit-
tee, I would move that the subject be recommitted, with
instructions to report at a future meeting of the Associa-
tion.



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