New Jersey State Bar

JOHN SCHOMP

Supreme Court of New Jersey.
June Term, 1878.

1. A contract of an attorney at law for a certain remuneration for his
services is legal and can be enforced by suit, such an officer not standing
on the same footing as an advocate.

2. The law of maintenance and champerty does not prevail in this state.
The plaintiff was an attorney at law, and brought this suit against the
defendant for moneys alleged to be due for services rendered as such
attorney, under a special contract. It was shown at the trial that the
defendant was interested in resisting the probate of the will of the late
Dr. Vanderveer, and that he had put in a caveat, which had been drawn by the
plaintiff. The testimony of the plaintiff, in proof of his bargain, was as
follows: “He,” the defendant, “said he couldn’t afford to go to much
expense, and asked me what I would charge him; he said that if the will were
set aside, and he got a share of the estate, he could afford to pay well; if
it was not, he couldn’t afford to pay me much; I told him I didn’t hardly
know what I ought to charge him; that it would be a big case; I said to him
that the usual charge for collections would be five per cent. but I didn’t
know how that would be in this case; he said he would be very willing to pay
me that in case I succeeded, and he got his share of the money; but that if
he didn’t, or if the will was not set aside, that then he couldn’t afford to
pay much more than my expenses; I told him I was willing to undertake to
look after his interest upon those terms, if he would agree to give me that
and pay such necessary expenses as I had been to, in case we lost, and run
the risk of getting the rest out of any allowance made by the court; he said
he was satisfied.”

Argued at February Term, 1878, before BEASLEY, CHIEF JUSTICE, and Justices
DEPUE, SCUDDER and
40 N.J.L. 195

The opinion of the court was delivered by BEASLEY, CHIEF JUSTICE.

This suit is brought to recover the amount alleged to be due to the
plaintiff for certain services rendered, as an attorney at law, to the
defendant, and which were to be paid for at a certain rate, according to the
terms of a payroll contract made between them. At the time of this
engagement of the plaintiff, a proceeding was pending before the
surrogate-general, touching the probate of a will, against which the
defendant had filed a caveat, and, as has been found by the jury, the
plaintiff was duly employed by the defendant to attend in his behalf to that
litigation, with the understanding that if successful in the suit, he was to
be paid in the ratio of five per cent. on the sum recovered, but if
thwarted, he was to receive his expenses and such compensation as might be
awarded to him out of the estate, according to the practice in the
ecclesiastical courts. The will referred to was rejected, and in the
distribution of the estate a considerable sum came to the defendant; so that
no question can be made with respect to the plaintiff’s right to recover in
this action, if it be settled that his contract providing for his
remuneration in a specified manner, be a valid one.

The legality of that contract, therefore, is the essential question in this
and this, on the argument, was put in dispute on two grounds.

In the first place, it was insisted that the law will not permit an attorney
at law to contract with his client for a compensation for his services, and
that if such contract be made, it cannot be enforced by an action.

The ground of this contention was, that an attorney belongs to a liberal
profession, one of whose cardinal rules it is, that it would suffer a
disparagement if its members could put out their intelligence and learning
to hire, and that, consequently, the rewards for their services must be
altogether voluntary gifts, not merces, but honoraria. To sustain this
position, the cases of Seeley and others v. Crane, 3 Green 35, and Vanatta
v. McKinney’s Executors, 1 Harr. 235, were cited. But it is very plain that
neither of these decisions is in point, for neither of them related to
services of an attorney at law, but both to the functions of an advocate. In
the case now before this court, it is shown that at the time this contract
was entered into, the plaintiff was an attorney, but was not a counselor,
and that, therefore, the services bargained for did not pertain to advocacy;
and this difference places this case entirely aside of the line of these
previous judgments. In the former of these reported cases, all that was
adjudged was, that the fees of counsel, eo nomine, could not be recovered in
an action of assumpsit, the reason assigned being, that, following the
example of the Roman orators and English barristers and sergeants, such
counsel did not demand compensation as a matter of right, but accepted a fee
as an honorary gift; the court, however, expressly reserving the question
whether such counsel fees, when due by special contract, could not be
recovered by suit. And nothing different from this was settled by the latter
of the cited cases, it being there declared that the service of counsel in
speaking to a cause in court was an exception to the ordinary rule that a
claim for labor, done at the request of another, was legally enforceable.

And this I regard as the established discrimination. I do not find anywhere,
that it was the common law rule that, irrespective of the law of
maintenance, an attorney at law could not stipulate for his compensation.
Such contracts were undoubtedly regarded with great jealousy by the courts,
and were very generally discountenanced by the legal profession, and were
seldom enforced, and were not infrequently set aside by courts of equity.
But the idea that attorneys were subject to the same disability as an
advocate was, in regard to contracting with their clients for their
remuneration, has no foundation in legal history or adjudged cases. Unlike
those of the English barrister, the services of the attorney were not
thought to be purely honorary. He was of right entitled to certain fees, and
the conditions of his status were not such as to disqualify him to contract
for remuneration. The attorney could bind himself to his client, and the
client to the attorney, by a contract, which was reciprocally enforceable,
but no such tie as this could be created between the client and the
advocate. In legal theory the connection of the counsel with his client was
voluntary, and rested altogether in moral considerations, and no agreement
for service on the one side, or for remuneration on the other, could be made
by expression or implication, that would form the basis for a suit. On such
an agreement neither could sue nor be sued. In Fell v. Brown, Peake 96, Lord
Kenyon held that an action would not lie against a barrister for misconduct
in the management of a cause; and in Turner v. Phillips, Peake 122, that a
fee given to such an officer to argue a cause which he did not attend, could
not be recovered; and, so again, in Mulligan v. McDonough, 2 L. T. (N. S.)
136, it was ruled that an action against a barrister for non-attendance at a
trial, was not maintainable. The law was thoroughly settled that the client
could not convert what the courts regarded as a moral obligation on the part
of the advocate, into a legal one. And, conversely, the same infirmity of
obligation was held to exist wherever the advocate presented himself as the
dominus litis, the response to his plaint being that his claim, however fair
or equitable, had no legal force. And this immunity and disability of these
officers were entirely the creatures of the importance of their functions
and the powers and privileges with which they were invested. Chief Justice
Erle, in his masterly opinion in Kennedy v. Broun, 13 C. B. (N. S.) 677,
which is the leading case upon this subject, when expressing the reason why
the advocate should theoretically be considered an unhired agent, thus
describes the magnitude and importance of his office. He says, speaking of
the advocate: “He is trusted with interests, and privileges and powers
almost to an unlimited degree. His client must trust to him at times for
fortune and character and life. The law trusts him with a privilege in
respect of liberty of speech, which is in practice bounded only by his own
sense of duty; and he may have to speak upon subjects concerning the deepest
interest of social life, and the innermost feelings of the human soul. The
law also trusts him with a power of insisting on answers to the most painful
questioning, and this power, again, is in practice, only controlled by his
own view of the interests of truth. It is of the last importance that the
sense of duty should be in active energy proportioned to the magnitude of
these interests. If the law is, that the advocate is incapable of
contracting for hire to serve when he has undertaken an advocacy, his words
and acts ought to be guided by a sense of duty, that is to say, duty to his
client, binding him to exert every faculty and privilege and power in order
that he may maintain that client’s right, together with duty to the court
and himself, binding him to guard against abuse of the powers and privileges
entrusted to him, by a constant recourse to his own sense of right.” These
were the principles adopted in this celebrated judgment, and upon which the
conclusion was founded that the express promise of the client to pay the
advocate “did not constitute any legal obligation.” The question was
directly presented, and was directly decided; and that such was the rule of
the common law I have not a particle of doubt, so that if that was the
aspect of the question now presented to this court, I should be in no doubt
how to decide, for I should feel that I had not the power, and I certainly
should not have the inclination, to put aside a rule which has been so long
established, and which carries with it all the authority that wisdom and
learning can impart. But this subject is no further within the scope of the
present inquiry than for the purpose of showing the exact limits of the
doctrine that an obligation to pay for legal services cannot, with respect
to the advocate, be put in the form of a legal obligation, for, as we have
seen, such inability does not reach to others besides advocates. So sharply
is the boundary of such disability defined, that in the case just referred
to, it is shown, by a reference to decisions, that even barristers can enter
into legal compacts, with respect to their compensation, in other matters
than those of advocacy, and Chief Justice Erle says that his proposition “is
confined to incapacity for contracts concerning advocacy in litigation.” It
seems to me clear, therefore, that such incapacity does not appertain to the
office of attorney, and that the contracts of this class of persons touching
their services cannot be impugned simply on the ground of their supposed
incompetence to bind themselves or others in such matters. I have already
said that such contracts will be inspected with jealous vigilance by the
courts, on account of the delicacy of the relationship of the parties to
them, and the most transparent candor and good faith is required on the part
of the attorney in these dealings with his client; and on such occasions, a
court of equity is ever on the alert, for, as was said by Lord Hardwicke, in
the case of Saunderson v. Glass, 2 Atk. 296, “if an attorney, pendente lite,
prevails upon a client to agree to an exorbitant reward, the court will
either set it aside entirely, or reduce it to the standard of those fees to
which he is properly entitled;” but, subject to these safeguards, I can find
no ground for saying that such a general restraint is imposed on an
attorney, with respect to contracts for his remuneration, as is inherent in
the office of the advocate.

Before closing my remarks on this head, I will add the observation that the
American decisions on the subject have not been overlooked, and that it is
quite understood that the weight of such decisions is in favor of
considering the English doctrine relating to this topic, even as it relates
to advocates, as obsolete and inapplicable to the times. All I wish to say
is, that I cannot concur in this view, for the rule in question has always
flourished in full vigor as a part of the common law, and has never, during
any interval of time, fallen into disuse; and that as its only foundation
was its supposed efficacy in sustaining the honorable standing of the
advocate, I can by no means admit that such a rule is alien to the
professional ethics of this country. The principle that the advocate cannot
stipulate with his client for his perquisites, is one of the established
customs of our inherited jurisprudence, and is entirely consistent with our
social conditions, and, therefore, in my opinion, is not to be eliminated
except by legislation.

The second objection to the maintenance of this suit is that the agreement
sued on is champertous.

The engagement of the client in the present case was that the attorney
should, if successful in the suit, be entitled to a certain part of the
moneys thus recovered, and such an agreement, I am satisfied, would be
champertous by force of the ancient English statutes. It was urged, on the
argument, that a stipulation to bear the expenses of the litigation is an
essential ingredient in the offence of champerty, and that there was no such
stipulation in this case; but the authorities do not sustain, but, on the
contrary, they overthrow this contention. Lord Coke, in 2 Inst. 564, says,
treating of champerty, “an apprentice or attorney cannot contract to have
any part of the thing in demand, after the recovery;” and in Box v. Barnaby,
Hob. 117, the similar view of Chief Justice Hobart is thus expressed: “I
hold that if an attorney follow a cause to be paid in gross, when it is
recovered, that is champerty.” The consent of the attorney to give his
services is in effect a stipulation to contribute largely to the ordinary
expense of a suit, and, consequently, it would seem to follow, reasoning
upon general principles, that such an arrangement must be deemed illegal
wherever the statutes in question are in force. Entertaining this view, the
only remaining question is whether the English statutory or common law,
touching this subject, has been adopted in this state.

It appears to me safe to say that, upon examination, any inquirer into this
branch of jurisprudence will be satisfied that the entire doctrine of
maintenance was the product of a state of society very different from that
which now exists, or has ever existed, in this state. The entire object of
the doctrine was to protect the weak against the oppressions of the
powerful, and such an object could be appropriate only in an age when the
social adjustments, with respect to rank and prerogative, were incomplete
and there was instability in the administration of the laws. There was an
epoch in the history of our English ancestors when the influence of power
and exalted station was not unfelt even within the precincts of a court of
justice, and when, in a contest with such influence, even truth and right
could not be sure of prevailing. In such a state of things, it was a matter
of the utmost importance that the sale of rights in litigation should be
interdicted by rigorous laws, under highly punitive sanctions; and,
consequently, we are not inclined to dispute the wisdom of those successive
acts of parliament which were from time to time enacted, and which, upon
their face and in their phraseology, give evidence of the existence of
social conditions entirely foreign to those with which we are familiar. The
prohibition of this law is aimed, primarily, at the officers of the king, at
the chancellor, treasurer, justices, king’s counselors, clerks of chancery
and exchequer, at any of the king’s house, clerk or lay, and at pleaders,
apprentices, attorneys, and stewards of great men, showing, in its
application, the character and the magnitude of the evil to be suppressed,
so that it is not a matter of surprise that these laws were liberally
expounded by the courts, and that a system was thus gradually established,
originally beneficial, but which became, as time passed and social
circumstances changed, unduly restrictive of the dealings of men with each
other. As was to be expected, as the times improved and thus these laws
became less essential for the protection of the humbler classes, somewhat of
the original severity which had been shown in their execution was mitigated,
and the scope of their operation was, by judicial construction, contracted.
This decline from the primitive rigor in the application of this series of
acts, was noticed by Judge Buller, in the case of Master v. Miller, 4 T. R.
320, his comments being expressed in these words: “It is curious, and not
altogether useless, to see how the doctrine of maintenance has from time to
time been received in Westminster Hall. At one time not only he who laid out
money to assist another in his cause, but also he that by his friendship or
interest saved him an expense which he would otherwise be put to, was held
guilty of maintenance. Bro., tit. “”"Maintenance,” 7, 14, 17, &c. Nay, if
he officiously gave evidence, it was maintenance, so that he must have had a
subpoena or suppress the truth. That such doctrine, repugnant to every
honest feeling of the human heart, should be soon laid aside must be
expected. Accordingly, a variety of exceptions were soon made, and, amongst
others, it was held that if a person has any interest in the thing in
dispute, though on contingency only, he might lawfully maintain an action on
it. 2 Roll. Abr. 115. But in the midst of all these doctrines on
maintenance, there was one case in which the courts of law allowed of an
assignment of a chose in action, and that was in the case of the crown; for
the courts did not feel themselves bold enough to tie up the property of the
crown, or prevent that from being transferred. 3 Leon. 198; Cro. 180. Courts
of equity, from the earliest times, thought the doctrine too absurd for them
to adopt, and therefore they always acted in direct contradiction to it, and
we shall soon see that courts of law also altered their language on the
subject very much.” From this quotation, it is obvious that the system that
had grown up under these laws relating to maintenance was not altogether in
harmony with the habits, needs and business of modern life, and this
consideration has helped me to the conclusion to which I have arrived, that
the doctrine of maintenance has never had a foothold in the jurisprudence of
this state. I shall designate, as briefly as possible, the grounds of this
opinion.

By the act of November 24th, 1792, (Pamph. L. 794,) Judge Paterson was
authorized to collect and put in form all the statutes of England and of
this state which then remained in force here, and Mr. Griffith, in referring
to the revision that was the result of this authority, says that the
compiler “omitted, as inapplicable, the English statutes relative to the
buying and selling of titles. 1 R. II., ch. 9; 32 Hen. VIII., ch. 2. As he
did also those against maintenance. 1 Ed. III., ch. 14; 20 El., ch. 4, &c.
Also of “”Champerty,” 3 Ed. I., ch. 25; 28 Ed. I., ch. 11.” The question
then arises, what was the meaning of this omission? I can perceive no other
solution except the inference that Judge Paterson considered them neither a
part of the statute law of this state, or as adapted to our circumstances.
By the constitution of 1776, it was declared, in Article XXII. “That the
common law of England, as well as so much of the statute law as have been
heretofore practiced in this colony, shall still remain in force, until they
shall be altered by a future law of the legislature;” and when, therefore,
this particular series of acts was not comprised in this accurate and
authentic compilation of the laws in force, it seems manifest that such
leaving out was a meditated exclusion. If it be said that such a rejection
of the statute law did not affect the common law, and that, by the common
law, maintenance was prohibited, my answer is, that since the publication of
the body of selected laws just referred to, there is no trace of the
prevalence of any part of such a doctrine, either in our practice, judicial
dicta, or decisions. It is obvious that Mr. Griffith inferred that the
entire doctrine of maintenance and champerty was thought by Judge Paterson
to be “inapplicable” to the polity of this state. And although in some of
the older legal digests and commentaries the doctrine of maintenance is said
to be a part of the common law, nevertheless I am strongly of the opinion
that it would be altogether impracticable to ascertain of what rules such
doctrine consisted, as embodied in that ancient system. To what books are we
to have recourse if we would enter on so difficult an investigation?

The beginning of the statutory law prohibitive of maintenance is coeval with
the Year Books, so that all the recorded decisions of the courts, which have
come down to us upon this subject, consist of an application and
construction of such statutes. I know no means of discovering what was the
substance or definite form of the legal rules relating to this doctrine
existing antecedently to such recorded decisions. If we were to go back to
the time of Richard I., the era when legal memory begins, and examine the
rotuli curiae regis, we could probably glean not a fragment of useful
learning on this theme, and we would certainly obtain nothing that would be
serviceable to our inquiry from the pages of the earliest text writers or
commentators, for there appears to be no single sentence in any of those
works that can be said, unless by an exceedingly fantastic construction, to
be applicable at all to this subject. Thus, when the Mirror declares that
the law opposes itself to all those ministers of the king who maintain false
actions, false appeals, and false defenses, knowingly, (“touts ceux
ministers le roy, que mainteinont faux actions, faux appeales, on faux
defences a escient”) the rational interpretation of such expressions is,
that they are prohibitive, not of giving assistance to suits or defenses
which are believed to be true, which would be maintenance, but of aiding in
suits or defenses known to be false, which would be acts akin to malicious
prosecutions or fraud. Nor can I think that there is any reference to the
doctrine of maintenance in those declarations of Bracton and Fleta, that the
justices in ere should inquire into the misfeasance’s of sheriffs and other
bailiffs in stirring up suits with a view to their own gain, %7F’per quod
justitia et veritas occultetur.” And yet it is out of such materials as
this, thus obscure and indefinite, that the law of maintenance is to be
fashioned, if it is to be sought behind the statutes and their explanations
by the courts. The truth is, there is the best reason for believing that the
entire law of maintenance, regarding it as an intelligible subject, is the
creature of the English statutory law, and of the judicial constructions of
such law, and the consequence is, that when this set of acts was designedly
left out of our statute book, there existed no rational ground for the
contention that any part of this law of maintenance, in any form, remained
in force in this state. And it is also certain that if these English acts
had been incorporated in the compilation authorized by the statute of 1792,
they would have had but a mutilated and imperfect operation, for our courts
of common law, from earliest times, have, by force of their inherent
equitable powers, protected the rights of an assignee of a chose in action;
and lands, the title to which was in dispute, or the possession of which was
adversely held, could be conveyed by a deed of bargain or sale, by force of
the statute passed March 17th, 1713-14, which gives to the grantee to uses
“as full and ample possession” as if he were “possessed thereof by solemn
livery of seizing and possession.” With these subjects taken out of the
field of its operation, it may well be concluded that Judge Paterson was led
to the conclusion that this system that had been built up in England, which
was intended to prevent the acquisition of any right to litigate, or any
interest in such right, would be but a disturbing force, and unsymmetrical
if introduced in the body of our laws, that were, in a considerable degree,
constructed on an opposite theory.

These are some of the principal considerations from which I have concluded
that the doctrine of maintenance does not prevail in this state, and that,
as a consequence, the contract sued on cannot be avoided on this ground.

The jury having found this contract to be devoid of deception or fraud, the
only inquiry remaining is as to its meaning. I cannot agree to the
construction put upon it. I think the fair interpretation is, that the
plaintiff was to take the entire charge of the case of the defendant then in
litigation, and this, I think, implied that the defendant was to be at no
further expense, with respect to lawyer’s fees, and it was therefore
incumbent on the plaintiff to employ, at his own charge, such counsel as was
needful, as he was not capacitated to argue the matter in his own person.
The fees actually paid for such counsel by the defendant are to be charged
to the plaintiff. So the moneys paid to the plaintiff out of the estate,
must be deducted; he had no right to these, by reason of his agreement, and
with the knowledge of the existence of such agreement, it is not at all
likely that the surrogate-general would have ordered such allowances, unless
upon the footing that they should operate in ease of the defendant. The
defendant is entitled to a credit to the extent of such allowances.

Neither do I think the plaintiff can claim any percentage on the moneys
derived or to be derived from the real estate. The contract did not touch
such real estate; it related to the suit then pending, which altogether
pertained to the personality. The language of the agreement, as proved by
the plaintiff himself, is extremely clear to this effect.

If the plaintiff is willing that these deductions shall be made, the verdict
may stand for the residue; otherwise, let the rule be made absolute.

N.J.Sup. 1878.
JOHN SCHOMP v. ISRAEL SCHENCK

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