Summary
In Andrews v. Haas (214 N.Y. 255) the opinion of CARDOZO, J., states the sweeping application of this principle: "The employment of a lawyer to serve for a contingent fee does not make it the client's duty to continue the lawsuit and thus increase the lawyer's profit.
Summary of this case from Fellner v. ZuckerbergOpinion
Argued January 21, 1915
Decided February 25, 1915
Harold A. Andrewes, appellant, in person. Louis B. Eppstein and Harry Rosenberg for respondents.
The plaintiff is a member of the bar. He complains that the defendants refused to prosecute an action in which they had retained him as their lawyer. The agreement was, he says, that they would sue for $180,000, and pay him twenty-five per cent of the amount recovered. He drafted a complaint for them, but there the action stopped. The defendants refused to go on with it. They were advised and became convinced, as they now allege in their answer, that the action was without merit. Because of their refusal to proceed with it the plaintiff says that they owe him $45,000. In opening his case he declined to prove the value of his services up to the time when the case was halted; he took his stand upon the ground that he was entitled to the profits that would have come to him if his clients had pressed the case to a successful conclusion. At the close of his opening the complaint was dismissed.
The employment of a lawyer to serve for a contingent fee does not make it the client's duty to continue the lawsuit and thus increase the lawyer's profit. The lawsuit is his own. He may drop it when he will. Even an express agreement to pay damages for dropping it without his lawyer's consent, would be against public policy and void. ( Matter of Snyder, 190 N.Y. 66, 69.) The law will not imply an agreement which would be illegal, if it were express. It will not, under the coercion of damages, constrain an unwilling suitor to keep a litigation alive for the profit of its officers. ( Tenney v. Berger, 93 N.Y. 524; Matter of Dunn, 205 N.Y. 398, 402; Nutt v. Knut, 200 U.S. 12, 21; Mesa County Bank v. Berry, 24 Colo. App. 487.) The notion that such a thing is possible betrays a strange misconception of the function of the legal profession and of its duty to society. When the defendants abandoned the action, they became liable to the plaintiff for the value of the services then rendered. That is the measure of their liability and of his right.
We have been referred to cases where clients, after retaining a lawyer for a contingent fee, have continued the litigation through another lawyer, and have been held answerable in damages. ( Martin v. Camp, 161 App. Div. 610; Carlisle v. Barnes, 102 App. Div. 573.) We are not required at this time either to approve or to condemn those rulings. They have not passed unchallenged. ( Martin v. Camp, supra; Johnson v. Ravitch, 113 App. Div. 810.) In those cases, and in others like them, the clients went on with the lawsuit. Here they abandoned it. We refuse to hold that they were bound to pay their lawyer as if they had gone on with it and won it.
The plaintiff's claim is without merit. The judgment should be affirmed, with costs.
WILLARD BARTLETT, Ch. J., HISCOCK, CHASE, CUDDEBACK, MILLER and SEABURY, JJ., concur.
Judgment affirmed.