EDITORIAL DEPARTMENT has been in constant correspondence with state and local bar associations, many of which he reports are enthusiastically following the work of the committee and are prepared to adopt its final report. THE LITIGIOUS SPIRIT Despite the prevailing notion of our critics, it is an accepted maxim of the profession that litigation is to be discouraged, and though the conduct of individuals it must be admitted fre quently falls below our ideals, no one who has dealt with reputable practitioners can fairly deny that lawyers settle their cases when clients will consent. With respect to the beginning of litigation, modern practice, especially in personal injuries cases, shows slighter inclination toward the discouragement of strife, and in wrestling with the problem of the propriety of contingent fees those who are drafting our Code of Ethics have based all their argument on the virtue of this maxim. It is unsafe, however, to reason from a premise not carefully defined and acceptable without qualification. Reduction of litigation is a benefit only when it means a reduction of the causes of litigation. Forced endurance of misfortunes that are believed to be wrongs is prolific of discontent, which is itself a source of danger in a democracy. The ideal of the law to which all others must bend is justice, the redress of all wrongs. It would be better, perhaps, for the profession and certainly would reduce litigation if the English fee system prevailed here, but when one considers the excessive cost of English litigation, one may well doubt if it would be better for the public. The poor and the moderately poor must have their champions, and these for the present at least must work for reward. Legal aid societies do not wholly fill the demand, for these people do not want charity. It is not best for them to receive charity. Justice dictates that the wrongdoer should fully reimburse the plaintiff by paying his actual counsel fees, but the danger of abuse of such a rule is too obvious to theprofession to make it likelyto be adopted. Public sentiment, however, is less hostile, and with the education of the public in the methods
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and even the abuses of personal injury litiga tion it is becoming increasingly evident that juries add to the natural verdict enough to cover the fee they think will be exacted. Developments such as these warn us that the subject needs more definite regulation- and those who adhere to the older standards demand it for their protection. A distinction should be made at the start between fees wholly contingent, including champertous agreements to assume the expense of litigation, and fees graded according to success with or without definite agreement. These are admittedly legal and consistent with our existing theories of a lawyer's duty to the court and to clients. It is the champertous agreements, which the demands of clients are rapidly making customary, that need prompt regulation. Clients are coming to regard a demand for a retainer in a personal injury action as exorbitant and take their cases to more compliant offices. The preliminary draft of the Code of Ethics of the American Bar Association contains the following canon: "Contingent fees may be contracted for, but they lead to many abuses and should be under the supervision of the court." In a Code of Ethics which does not purport to outline in detail all the duties of a lawyer or to be in form for statutory enactment, it may be that this clause is sufficiently definite. Probably the disagreement of the members of the committee upon it has made it impossible to make the canon more positive. The subject, however, is important and bound to lead to much dis cussion. It is well therefore to determine, at some stage in this discussion, in what form the supervision of the court should be exercised. It was apparently the intention of the com mittee of the New York State Bar Association, with whom the idea originated, that a petition should be filed with the entry of the case foi permission to take it on a contingent fee, the amount of which should be determined by the court after verdict. This suggestion seems sensible. All the evils now complained of from the abuse of contingent fees should dis appear in the solvent of sunlight, for they are all products of secrecy.
