Opinion
June, 1914.
Hirsh Newman, for plaintiff.
Van Zandt Webb, for defendant.
It is impossible to read the agreement between the plaintiff and defendant in connection with the agreements of the plaintiff with the property owner without reaching the conclusion that the plaintiff corporation endeavored to practice law in contravention of public policy and also the prohibition of section 280 of the Penal Law in force at the time the contracts were made. Matter of Co-operative Law Co., 198 N.Y. 479; Matter of City of New York ( Bowsky), 144 A.D. 107; Matter of City of New York ( Murphy), 146 id. 125. If there were any doubt as to what the agreements meant, it is removed by the plaintiff's own construction of its rights under the contract with defendant as set forth in the complaint and in its application for a temporary injunction in this action. United States Title Guaranty Co. v. Brown, 158 A.D. 542. Much might be written upon the subject, but it is unnecessary.
The profession of the law, one of the oldest known to civilization, involving the most sacred confidence between man and man, with its past of high ideals and service to humanity, has in the last quarter of a century suffered much from the inroads of the new financial and business methods in this great land of ours. Whether by ill-advised attempts by corporate employers to dominate and direct attorneys and counsel in the conduct of litigation, whether by so-called title companies or casualty insurance corporations, the old ideals in the relation of attorney and client, which meant so much to mankind, have suffered and have been threatened with demoralization. This is wrong. The loss of the individual personal relation involved in the attempt by corporations to practice law is so serious to the community that it is against public policy, and I am inclined to think malum in se, but, at any rate, there is no question that in this state it is unlawful by force of the statute. The agreement of the plaintiff and defendant and the plaintiff's agreements with the property owners seem to me to be flagrant violations of the law, and before a court of equity no skillfully framed wording of a corporate charter can be allowed to cover the wrongs or to make them legal.
But while it may be argued that the parties are in pari delicto, and that therefore a court of equity will not trouble itself with their disputes, I cannot feel that the defendant, an attorney of the court, should be allowed to retain in his possession moneys concededly belonging to the plaintiff. Irwin v. Curie, 171 N.Y. 409; Bernard v. Fromme, 132 A.D. 922; Duval v. Wellman, 124 N.Y. 156. It appears from the contract between plaintiff and defendant that the plaintiff advanced a substantial sum of money for witness fee and expenses, which defendant promised to return when collected from the city under the final order, and, therefore, it would be contrary to good conscience for the court to allow one of its attorneys to retain this money, and the defendant must account for it and pay it back. I have had more trouble with the plaintiff's claim that defendant had collected and has in his possession money which belongs to plaintiff as its percentage under its agreement with the property owners. I think these agreements with the property owners are void, but I do not see how that justifies defendant in retaining the money. It does not belong to him. The property owners, so far as appears, have not demanded its return by defendant; they voluntarily paid it, or offered no objection to his collecting it. His own fees and compensation are fixed by his agreement with plaintiff, which, although it may be void, still furnishes us with a basis for determining the quantum meruit. It is what he was willing to take for his services. It seems to me he should also pay that money to the plaintiff, if such payment can be made, so as to protect him from demand by the property owners. I do not know that they could assert any claim against defendant. As to this branch of the case I would be glad to hear counsel further or receive suggestions from them as to the appropriate findings and judgment.
But as to the agreements between plaintiff and the property owners and the defendant, they are unlawful. Unlawful as to defendant, and he repudiates them. Unlawful on the part of the plaintiff and the property owners, but subject to the right of the property owners to call the plaintiff to account, because the prohibition of the statute is not against the individual who unwittingly employed it.
There should be judgment for the plaintiff for an accounting in accordance with these suggestions, without costs.
Judgment for plaintiff, without costs.