An Essay on Professional Ethics: Second EditionSharswood, George
Philosophy
An Essay on Professional Ethics: Second Edition
Sharswood, George
Legal ethics -- United States
It is unnecessary to inquire here whether such a contract is void as
champertous, and contrary to public policy. None of the English statutes
on the subject of champerty have been reported as in force here; but it
was once a question whether it was not an offence at common law,
independently altogether, of any statute enactment. Enlightened judges
in several of our sister States have so considered it. "The purchase of
a lawsuit," says Chancellor Kent, "by an attorney, is champerty in its
most odious form; and it ought equally to be condemned on principles of
public policy. It would lead to fraud, oppression, and corruption. As a
sworn minister of the courts of justice, the attorney ought not to be
permitted to avail himself of the knowledge he acquires in his
professional character, to speculate in lawsuits. The precedent would
tend to corrupt the profession, and produce lasting mischief to the
community."[48] "This is not the time nor place," says Chief Justice
Gibson, "to discuss the legality of contingent fees; though it be clear
that if the British statutes of champerty were in force here, such fees
would be prohibited by them. But a contract of the sort is certainly not
to be encouraged by implication, from a questionable usage, nor
established by less than a positive stipulation."[49] A contract to
allow a compensation for services in procuring the passage of a private
Act of Assembly, has been held to be unlawful and void, as against
public policy.[50] "The practice," said Judge Rogers, in delivering the
opinion of the court, "which has generally obtained in this State, to
allow a contingent compensation for legal services, has been a subject
of regret; nor am I aware of any direct decision by which the practice
has received judicial sanction in our courts." The case of _Ex parte
Plitt_,[51] however, recognizes fully the lawfulness of contingent fees,
though in his opinion Judge Kane says: "It is not a practice to be
generally commended, exposing honorable men not unfrequently to
misapprehension and illiberal remark, and giving the apparent sanction
of their example to conduct, which they would be among the foremost to
reprehend. Such contracts may sometimes be necessary in a community such
as that of Pennsylvania has been, and perhaps as it is yet; and when
they have been made in abundant good faith--_uberrima fide_--without
suppression or reserve of fact or exaggeration of apprehended
difficulties, or under influence of any sort or degree; and when the
compensation bargained for is absolutely just and fair, so that the
transaction is characterized throughout by 'all good fidelity to the
client,' the court will hold such contracts to be valid. But it is
unnecessary to say, that such contracts, as they can scarcely be
excepted from the general rule, which denounces as suspicious the
dealings of fiduciaries with those under their protection, must undergo
the most exact and jealous scrutiny before they can expect the judicial
Public-domain text, read in full here on John Shaqi.
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