Grievance Committee v. Ennis , 84 Conn. 594 ( 1911 )

Section 459 of the General Statutes provides that the Superior Court may suspend or displace attorneys for just cause. We have said that while a large measure of discretion enters into the action of the court in the exercise of this power, such discretion is not an absolute, but a reasonable one; that the power is one which is always to be used with moderation and caution; that the accused attorney is entitled to notice of the charges against him, to a fair hearing, and a fair determination, in the exercise of a sound judicial discretion, of the questions at issue, and to an appeal to this court for the purpose of having it determined whether or not he has in some substantial manner been deprived of such rights. In re Durant, 80 Conn. 140, 147, 150,67 A. 497.

One way by which charges against attorneys at law for acts of misconduct, not committed in the actual presence of the court, may be brought before the Superior Court for investigation, is provided by chapter 120 of the Public Acts of 1907, p. 673, and by the rules of court. Practice Book (1908) p. 206, § 10. The method there provided is the one adopted in the present proceeding. It contemplates a presentment to the Superior Court by the Grievance Committee, the State's Attorney, or a member of the bar, by written complaint describing the offense or offenses charged; due service of such presentment and complaint upon the accused attorney; a prosecution of the same by the State's Attorney of the county, or by other proper officer or attorney appointed by the court; and a fair trial and determination by the court of the matters in issue.

The statute and rules contain no further provision regarding the pleadings than that the accused may make any proper answer.

In the present case the parties were very properly permitted to frame issues in accordance with the general rules of pleadings.

In considering whether the judgment rendered by the Superior Court was justified, we should inquire what acts of misconduct can be said to be charged in this complaint as grounds for the suspension or displacement of the defendant from the office of attorney, and what facts have been found proved as the basis of the judgment of suspension.

First, it may be said to be charged that the defendant represented to Miss Shuster that he could obtain for her a large sum of money. It is neither alleged nor found proved that such statement was not made in good faith. From the nature of Miss Shuster's injury, and her statement to him of how the accident happened, he may well have believed that she was entitled to large damages. He had not then learned that her story was false.

Next, it may have been intended to charge that it was misconduct on the part of the defendant to instruct Miss Shuster not to accept any settlement from the Warner Brothers Company, and to have thus prevented her from obtaining the $300 alleged to have been offered her by the company.

An instruction, given in good faith by an attorney to his client, not to privately settle with the opposing party a claim such as that which the defendant was employed to prosecute, is proper and professional. Generally the attorney is supposed to be better able to conduct negotiations for the settlement of such a claim than the client. There is no averment that such instruction was not given in good faith, nor does the finding show that Miss Shuster ever received any authorized offer of settlement.

Next, it is alleged that the defendant accepted $500 in settlement of the claim without authority, and without reporting the offer of such settlement to Miss Shuster.

It is neither alleged nor claimed that the sum paid by the Warner Brothers Company was less than the amount Miss Shuster was entitled to receive or than could have been recovered by suit, or than the company might have been induced to pay by way of settlement, or that the interests of Miss Shuster were in any way betrayed by such settlement. In fact, in so far as the merits of Miss Shuster's claim are shown by the finding, the settlement made appears to have been a very favorable one for her.

The averment that the defendant promised to report any offer of settlement to his client before accepting it, is clearly disproved by the facts found. It appears that he was given permission to make a settlement and use his own judgment in the matter, and that he had no reason to suppose that he was expected to report any offer of settlement before accepting it.

It is charged that the sum of $250 retained by the defendant for his services from the $500 received in settlement was excessive and unjust. Had there been no special agreement regarding his compensation, we think it might very properly have been found, upon the facts before us, that the charge of $250 for obtaining $500 by way of settlement of his client's claim, and without suit, was excessive. But we have no certain test by which we can determine the precise sum which an attorney ought to charge for his services in a case of this character. It is largely a matter of opinion, and if an attorney should in good faith charge $250 for legal services which a court should find were worth less than half that sum, while such decision might be a sufficient reason why the attorney should not retain the entire sum charged, it would hardly be a sufficient reason for disbarring or suspending him from practice, at least until he refused to return the sum overcharged.

But in charging $250 for his services, the defendant evidently relied upon his right to do so under his agreement with his client, irrespective of the value of his services; and the finding fails to show that in so doing he acted corruptly or in bad faith, unless it is shown by the conclusion of the court, stated at the close of the finding, that his conduct was "unfair and extortionate," or by the statement in the judgment-file that the agreement between the defendant and his minor client was "unfair, extortionate and illegal."

An attorney's charge for professional services may be said to be extortionate when it is an oppressive or illegal exaction. Century Dictionary and Cyclopedia. In law, the obtaining or detention of money, colore officii, which is not legally due, is extortion. Preston v. Bacon,4 Conn. 471, 480. A charge made in good faith by an attorney for professional services, made in compliance with the terms of a contract with his client which is not illegal, cannot be said to be extortionate. Unless the contract in compliance with the terms of which the defendant's charge for services was made was illegal, the conclusion of the trial court, that the charge was unfair and extortionate, is not sustained by the subordinate facts of the finding.

The complaint does not charge that the contract between the defendant and his client was illegal, but only that it was improper. The State's Attorney admits in his brief that contracts for a contingent fee of fifty per cent. of the amount which may be recovered, when nothing is to be paid in case of failure, are not necessarily unfair, extortionate, or illegal. His claim in his brief is that this agreement for the retention of one half the sum recovered, irrespective of the amount or the labor or learning required to collect it, was so "inelastic," and made under such circumstances, as not to be binding on the client.

We have no thought of encouraging or expressing any approval of a practice by attorneys of obtaining employment in accident cases by agreeing to accept for their services a large percentage of the sum which may be recovered, and to make no charge for their services in case of a failure to obtain damages. Such a method of practicing the profession of law we think is generally and justly condemned by the bar, and contracts so made should always be closely scrutinized by the courts, and set aside when found to have been procured by fraud, undue influence, or imposition. "The poverty of a client may never justify a lawyer in purchasing an interest in the subject-matter of the litigation, or in stipulating for an extortionate fee on the basis of a wagering percentage of its profits." Code of Professional Ethics of State Bar Association of Connecticut,82 Conn. 708. There are undoubtedly cases when the poverty and necessities of the client may justify an attorney in accepting employment upon a large contingent fee, and a contract for a contingent fee of fifty per cent. of the sum to be recovered upon a claim such as that of Miss Shuster is not necessarily illegal because it is contingent and indefinite, or because it may be much more than compensatory for the services afterward rendered, provided always such contract is made with perfect fairness, and no advantage whatever is taken by the attorney of the ignorance or necessities of the person contracting for his services.Stanton v. Embrey, 93 U.S. 548, 557; Taylor v. Bemiss,110 U.S. 42, 3 Sup. Ct. Rep. 441; Perry v. Dicken,105 Pa. 83; Fellows v. Smith, 190 Pa. 301,42 A. 678; Morehouse v. Brooklyn Heights R. Co., 185 N.Y. 520,78 N.E. 179; Reece v. Kyle, 49 Ohio St. 475, 487,31 N.E. 747. Whether or not such contracts are fair and free from imposition is frequently to a considerable extent a matter of inference from the age, inexperience, or ignorance of the client, the character of the claim to be prosecuted, the services which may be required, and the amount of the fee which is demanded. Morehouse v. Brooklyn Heights R. Co., 185 N.Y. 520,78 N.E. 179.

The fact that Miss Shuster was a minor did not render her contract illegal. Contracts of infants are for the most part not void but only voidable, and especially when they may be for the infant's benefit, as this contract may have been. Kline v. Beebe, 6 Conn. 494, 502.

In the case before us it is not found, and the facts do not warrant the inference, that the defendant either in making the contract for the contingent fee, or in his subsequent conduct in collecting the $500, was actuated by any corrupt motive, or that he contracted for the payment of a fee, or charged a fee, which he believed was illegal, or that he intended to take any unfair advantage over Miss Shuster. Ennis did not solicit the employment as attorney for Miss Shuster, but was sent for by her. The subject of his employment and of the fee he was to receive were openly discussed at an interview with her, in the presence of her brother, her brother-in-law, and sister, and an interpreter, and these relatives took part in the discussion. The defendant apparently had no reason whatever to believe that Miss Shuster and her relatives did not fully understand the agreement that was made. It was probably at first understood that Ennis was to bring an action. When it was learned that Miss Shuster's statement of how the accident happened was incorrect, and that witnesses to sustain her claim could not be obtained, it was fully understood that what the defendant could collect would be by way of such settlement as he could procure to be made by the Warner Brothers Company, and to this arrangement Miss Shuster assented.

That the defendant as an attorney in good faith effected a settlement of the claim favorable to Miss Shuster, but without having as guardian obtained the authority of the Court of Probate, and that that court refused to allow the item of $242.20 in the guardian's final account, are not sufficient reasons for suspending the defendant from practice as an attorney. Unless restricted by statute, a guardian has the power, while acting in good faith and not contrary to the order of the Court of Probate, to make such a compromise.Ordinary v. Dean, 44 N.J.L. 64; Smith v. Angell,14 R. I. 192.

That the Court of Probate adjudicated the defendant's charge improper, and refused to allow that item of his final account, was not a matter referred to in the complaint. In fact, the order disallowing this item was not made until more than six months after the complaint of the Grievance Committee was filed in the Superior Court. And it is to be remembered that the question in this proceeding is not whether Miss Shuster is entitled to receive from the defendant some part of the sum he retained, but whether he should be suspended for charging such sum.

The judgment-file indicates that the order of suspension was to some extent based upon the claimed misrepresentations and concealment of evidence by the defendant at his interviews with the superintendent and with the secretary of the Warner Brothers Company. Of course, an attorney is never justified in making wilfully false representations regarding the evidence in his possession, for the purpose of procuring the settlement of a claim which he is employed to prosecute. But the mere failure on his part, while endeavoring to obtain such a settlement without suit, to reveal to his adversary the weakness of the evidence in his possession, and especially when dealing with persons who well knew the facts of the case and what the witnesses would testify to, can hardly be called a wrongful concealment of evidence, or such an act of professional misconduct as would justify his suspension. The statements of paragraphs 23 and 26 of the finding are very materially modified by those of paragraph 13 of the draft-finding marked "proven." By the latter paragraph it is found that the defendant said that he had a written statement from the interpreter (and he had such a statement), and that she could not very well go back of that; that he did not say what the statement contained; and that aside from this there was no false pretense regarding the evidence which he claimed to have. The defendant very likely induced the superintendent and secretary to believe that an action would be brought in case there was no settlement, and it does not appear that he did not have the intention to commence an action if no settlement was made. Mr. Warner and Mr. Greenman had investigated the facts and satisfied themselves that the company could not be held liable. We do not think it appears that they were induced to pay money by any false pretenses or fraud of the defendant. To save the expense of defending an action they very likely paid a larger sum than they otherwise would have paid.

Another substantial reason why the claimed misconduct of the defendant in his dealings with the Warner Brothers Company should not be made a ground for an order of suspension, is that the complaint contains no such charge.

The request of the defendant to have the finding corrected by adding facts contained in paragraphs of the draft-finding marked "proven" is irregular. Such facts of the draft-finding are treated as parts of the finding of facts. Waterbury v. Rigney, 79 Conn. 60, 65,63 A. 775.

Upon consideration of all the facts before us, we are satisfied that they are insufficient to support the order of suspension.

There is error and the order and judgment of suspension is set aside.

In this opinion the other judges concurred.