§ 94. DUTY NOT TO ACQUIRE INTEREST IN

LITIGATION.

It is for the best interests of the public that lawyers should act strictly as officers of the courts, to represent one or the other of the litigants. If they were permitted to purchase claims and sue upon them in their own behalf, it would encourage litigation and occupy the time of the court with suits that perhaps ought never to have been brought, thus excluding or delaying bona fide claimants.

So it is the policy of the law to limit by positive prohibition the powers of attorneys in this respect. They are allowed to act for such claimants as may choose to hire them, but they are not allowed to sue upon an acquired cause of action.

§ 95. DUTY AS TO CONTINGENT FEES.

Somewhat related to the previous section is the question of contingent fees. If the lawyer's compensation for services to be rendered in a case is contingent upon its successful termination, the situation resembles that in which a claim has been acquired outright. In the former case the lawyer, together with his client, is interested in the outcome of litigation, while in the latter case the lawyer alone would be interested.

Between the two classes of cases the law has drawn a line, and under certain conditions con

tingent fees are declared legal, whereas any contingent fee that approaches an interest in the subject matter of suit is illegal, as being an acquired interest within the meaning of the law.

The distinction drawn between permissible agreements for contingent fees and champertous agreements is uncertain, in so far as agreements in respect to damages recoverable is concerned. The courts say that if the agreement is to share the proceeds of the suit the agreement is illegal.

If suit is brought to recover land it is easy to see that if the attorney stipulates that he is to have a certain proportion of the land, the agreement would be champertous. But if money damages are recovered, the lawyer has a right to deduct his charges from the actual proceeds of suit, whether his charge be contingent or definitely agreed upon prior to the suit. How, then, is it to be determined that the agreement is to share the proceeds of the suit?

The question is a perplexing one. The subject of champerty is too extensive to be discussed here, but this much may be said: If the agreement for compensation, although contingent upon the amount of recovery, is that the client shall become liable for the fee, and is not that the lawyer and client are to become sharers in a common enterprise, the agreement is legal.

Thus it is to be seen that lawyers are under a

duty to the State not to enter into certain kinds of agreements for contingent fees, whereas in other kinds of similar agreements there is no such duty.

A person unacquainted with actual conditions of society might well inquire why the law did not consistently prohibit all kinds of agreements for contingent fees, and thus remove the possibility of abuse of the milder form of the custom. The difference between the legal and the illegal agreement is largely one of degree, and a legal quibble is often resorted to to distinguish one from the other.

There is a sound reason for not abolishing all forms of contingent fees. Many litigants are too poor to hire a lawyer unless he is willing to base his charge upon the amount of recovery,- and in event of failure to charge nothing. Justice would be practically denied to the poorer members of a community if the law prohibited attorneys from engaging their service for contingent fees. The welfare of the community demands that the courts shall be accessible to every inhabitant of the land, whether he be rich or poor. Hence, it is a lawyer's duty to the State to accept cases on the basis of contingent fees, provided he does not go to the extent of making a champertous agreement.

Hoffman's Resolutions, Resolve 24:

"I will never be tempted by any pecuniary advantage, however great, nor be persuaded by any appeal to my feelings, however strong, to purchase in whole or in part my client's cause. Should his wants be pressing, it will be an act of humanity to relieve them myself, if I am able, and if I am not, then to induce others to do so. But in no case will I permit either my benevolence or avarice, his wants or his ignorance, to seduce me into any participation of his pending claim or defense. Cases may arise in which it would be mutually advantageous thus to bargain, but the experiment is too dangerous, and my rule is too sacred, to admit of any exception, persuaded as I am that the relation of client and counsel, to be preserved in absolute purity, must admit of no such privilege, however guarded it may be by circumstances; and should the special case alluded to arise, better would it be that my client should suffer, and I lose a great and honest advantage, than that any discretion should exist in a matter so extremely liable to abuse, and so dangerous in precedent.

"And though I have thus strongly worded my resolution, I do not thereby mean to repudiate, as wholly inadmissible, the taking of contingent fees. On the contrary, they are sometimes perfectly proper, and are called for by public policy,

no less than by humanity. The distinction is very clear. A claim or defense may be perfectly good in law and in justice, and yet the expenses of litigation would be much beyond the means of the claimant or defendant and equally so

as to counsel, who, if not thus contingently compensated in the ratio of the risk, might not be compensated at all. A contingent fee looks to professional compensation only on the final result of the matter in favor of the client. None other is offered or attainable. The claim or defense never can be made without such arrangement. It is voluntarily tendered, and necessarily accepted or rejected, before the institution of any proceedings."

§ 96. DUTY OF PUNCTUALITY IN COURT.

The courts are maintained at public expense. If longer sessions become expedient, if additional judges or increased court-room facilities become necessary, the government must raise the extra funds by placing greater burdens of taxation upon the people.

Every needless delay in court occasioned by the absence of lawyers who have cases scheduled for trial makes necessary a slowing down of the progress of court work and reduces the court's efficiency, thus causing a congestion of business and the resulting necessity of more judges and