Covers cases on disciplinary actions related to contingent fee contracts in divorce actions

Smith, Joan

English

UW Law Digital Commons (University of Washington)

Washington Law Review Volume 29 Number 2 Washington Case Law-1953 5-1-1954 Legal Profession Joan Smith Follow this and additional works at: https://digitalcommons.law.uw.edu/wlr  Part of the Legal Profession Commons Recommended Citation Joan Smith, Washington Case Law, Legal Profession, 29 Wash. L. Rev. & St. B.J. 135 (1954). Available at: https://digitalcommons.law.uw.edu/wlr/vol29/iss2/11 This Washington Case Law is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington Law Review by an authorized editor of UW Law Digital Commons. For more information, please contact cnyberg@uw.edu. WASHINGTON CASE LAW-1953standards is that the union must comply with the procedural require-ments set forth in its constitution and by-laws.' The case of Mahoneyv. Sailors' Union of the Pacifics again emphasized that the court willlook behind the union determination of such a question. The court thereheld, contrary to the union tribunal, that the determination of thesitus of a trial for disciplinary action was not done in compliance withthe procedure of.the union constitution. In Minch v. Local Union No.370, Etc,"0 it was held proper to submit to the jury the evidence thatMinch, the union member, was expelled by less than the number ofvotes required and that after the union trial and pending appeal he wasnot reinstated to union membership after payment of his fine and cur-rent dues, both in violation of the union constitutional provisions. Thusthe court in effect rejected the union's contention that the union trialwas a matter of internal discipline, not a de novo matter in the trialcourt.Likewise, the substantive questions of union law, like the compliancewith procedural requirements, will be determined by the court de novoand the determination by the union tribunal will in no way be con-trolling." In the Mahoney case 2 the court held that the union's find-ings of grounds for expulsion were unfounded. "The charge beinginsufficient, the proceedings based upon it was a nullity and plaintiff'sexpulsion was void.. u8ROBERT S. MUCKLESTONELEGAL PROFESSIONContingent Fee Contract in Divorce Action-Disciplinary Action.The Washington court, in In re Smith, has held that it is a violationof the ethics of the profession for an attorney to enter into a contingentfee contract in a divorce action. This was the first time a court hadheard enjoined); Furniture Workers' Union Local 1007 v. United Brotherhood ofCarpenters & Joiners, 6 Wn.2d 654, 108 P.2d 651 (1940).s Johnson v. United Brotherhood of Carpenters & Joiners, 52 Nev. 400, 288 Pac. 170(1930).s 143 Wash. Dec. 803, 264 P.2d 1095 (1953), rehearing granted, 144 Wash. Dec. 497(1954). See Wollett and Lampman, The Law of Union Factionalism-The Case of theSailors, 4 STAr;. L. REv. 177 (1952)10 144 Wash. Dec. 14, 265 P.2d 286 (1953).It Polin v. Kaplan, 257 N.Y. 277, 177 N.E. 833 (1931) ; Leo v. Local Union No. 612of Int'l Union of Operating Engineers, 26 Wn.2d 498, 174 P2d 523 (1946).12 Supra note 8.1s Supra note 8 at 1097.142 Wn.2d 188, 254 P.2d 464 (1953). The agreement entered into with his cliententitled the attorney to twenty per cent of all sums which might be received by his19541WASHINGTON LAW REVIEWmade such a finding in a disciplinary action.2In England, contingent fee contracts, in any type of proceeding, areunlawful.' Although this view initially prevailed in this country, con-tingent fee contracts are now generally accepted and are widely usedin the field of personal injury actions.' Contingent fee contracts areheld not to violate Canon 10 of the Canons of Legal Ethics,' whichprecludes a lawyer from acquiring an interest in ligitation which he isconducting, and are expressly allowed by Canon 13, subject to severalconditions.A contract for a contingent fee, where sanctioned by law, should be reason-able under all the circumstances of the case, including the risk and uncer-tainty of the compensation, but should always be subject to the supervisionof a court, as to its reasonableness. 8It has been held in Washington that the statute permitting the compen-ation of attorneys to be fixed by the agreement of the parties allowscontingent fee contracts.! None of the Washington cases construingthe statute involve a contingent fee contract in a divorce case,8 but itis the almost universal rule in other jurisdictions that an attorney-clientcontingent fee contract in a divorce action is unlawful and unenforcibleas against public policy. The underlying basis for such decisions isthat "public policy is interested in maintaining the family relation...and that society demands a reconciliation, if practicable or possible."'Therefore, it is not fitting that an attorney's interest should benefit byclient as a result of the divorce proceeding, in addition to the amount of fees he wouldbe allowed by the opposing side.2 In In re Carleton, 33 Mont. 431, 84 Pac. 788 (1906), a disbarment proceeding, theattorney was found guilty of conduct constituting moral turpitude. Among other acts,he had entered into a contract with his client in a divorce proceeding entitling him toone-fourth of the sum awarded as alimony. However, the suspension was not based onthe ground that the attorney had entered into the contract, but rather on the groundthat he had failed to disclose the existence of the contract to the court in the divorceaction.3 AXTELL, CONTINGENT FEE, LEGAL AID AND ETHIcs 2 (1950).4DRINKER, LEGAL ETHICS 176 (1953).CANNON OF PROFESSIONAL ETHICS 10, 34A Wn.2d 129.o CANNON OF PROFESSIONAL ETHICS 13, 34A Wn.2d 130.7Smits v. Hogan, 35 Wash. 290, 77 Pac. 390 (1904) ; Weed v. Foster, 58 Wash. 675,109 Pac. 123 (1910) ; Delbridge v. Beach, 66 Wash. 416, 119 Pac. 856 (1912) ; Beck v.Boucher, 114 Wash. 574, 195 Pac. 996 (1921) ; Hamlin v. Case & Case, Inc., 188 Wash.150, 61 P.2d 1287 (1936).8 In Delbridge v. Beach, 66 Wash. 416, 119 Pac. 856 (1912), the contract in issueprovided, in the matter of compensation, that the attorney's fee would consist of one-fifth of the property obtained from a contemplated divorce action. The contingent fea-ture of the contract was not discussed in the opinion, however, as the contract was heldvoid as against public policy on the ground that it was a contract intended to promotethe dissolution of the marriage.9 Jordan v. Westerman, 62 Mich. 170, 180 N.W. 826, 830 (1886).[MAY'WASHINGTON CASE LAW-1953a failure of the parties to effect a reconciliation. In the Smith case,"0the court adopted this general rule and held that a contract which isvoid and unenforcible is not "sanctioned by law" as that term is usedin Canon 13; consequently, it is a violation of Canon 13 for an attorneyto enter into such a contract. Where the contingent fee contract isrelated to the amount of support money and alimony awarded to thewife, as was the case here, there is the additional objection that sucha contract would interfere with the duties qf the court.In fixing the amount and time of payment of support money and alimony,the court is entitled to have all the facts which would influence its decision.It is also entitled to be free from side agreements which would frustrate thecourt's effort to make suitable provision for the wife without undue burdenon the husband."1JOAN SMITHConduct of Lawyer before the Court-Candor. In a trial on a breach of contractaction, the attorney, testifying on behalf of his client, stated that he had paid the cost ofa title insurance policy, but did not reveal to the court that he had requested theinsurance company to hold his check until the outcome of the trial. In a disciplinaryproceeding, In re Healy, 143 Wash. Dec. 247, 261 P.2d 89 (1953), the court held thatwhile the attorney did not testify falsely before the trial court, he failed to exercise thecandor which is required of him as an attorney. The attorney was suspended frompractice for ninety days.MUNICIPAL CORPORATIONSTort Liability. In its national aspect the tort liability of a municipalcorporation presents an area of confusion, contradiction, and lack ofuniformity. The field is one of refinement, 'illogic, and apparentlycapable of resolution only by legislative enactment. In 1953 the Wash-ington Court rendered three significant decisions which serve to clarifyour position on the subject. These three cases, in their order of dis-cussion, are McLeod v. Grant County School Dist.,' Kilbourn v. Cityof Seattle,' and Hutton v. Martin.'The general common law rule relating to the tort liability of a muni-cipal corporation is: a municipal corporation is liable for torts com-mitted by its agents in the performance of proprietary function, but,in the absence of statute, it is not responsible for torts committed in10 Supra note 1.11 In re Smith, 42 Wn.2d 188, 254 P.2d 464, 469 (1953).142 Wn.2d 316, 252 P.2d 360 (1953).2 143 Wash. Dec. 345, 261 P.2d 407 (1953).3 41 Wn.2d 780, 252 P.2d 581 (1953).19541

Legal Profession

https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=3052&context=wlr

Legal Profession

Abstract

Similar works

Full text

Available Versions

UW Law Digital Commons (University of Washington)