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reports in which the doctrine has been applied. Marriage brokerage bonds, contracts in restraint of trade, contracts by expectant heirs, or in consideration of illicit cohabitation, or such contracts as may injuriously affect the administration of justice, or to procure a contract from a public officer, or to pay for an appointment to office, or aiding in procuring an appointment, or to pay for obtaining a pardon, or injuriously affecting the public interest as to the location of the terminus of a railroad, afford instances of the application of the doctrine: See 5 Rob. Pr., c. 42, pp. 407, 433, where many cases are cited and commented on.
In considering this question, our attention must necessarily be given to the statutes of this state, in regard to attorneys and counselors at law. They are to be found in the Code of Civil Procedure, and in the sections to which reference will be herein specially made. The following provisions will be found in the statute: Any citizen or person resident of this state who has bona fide declared his intention to become a citizen in the manner required by law, of the age of twenty-one years, of good moral character, and who possesses the necessary qualifications of learning and ability, is entitled to be admitted as an attorney and counselor at law in all the courts of this state: Code Civ. Proc., sec. 275. Every applicant for such admission must produce satisfactory testimonials of good moral character, and undergo a strict examination as to his qualifications in open court: Sec. 276. If, upon examination, he is found qualified, he shall be by the court admitted as such attorney and counselor, by an order entered to that effect upon its records, and a certificate of such record shall be given to him hy the clerk of the court, which certificate shall be his license: Sec. 277. On his admission, he must take an oath to support the constitution of the United States and the constitution of this state, and faithfully to discharge the duties of an attorney and counselor to the best of his knowledge and ability: Sec. 278. A roll of attorneys is to be kept by a prescribed public officer, which the applicant, on his admission, is required to sign: Sec. 280. Any person practicing law in any court, except a justice's court or a police court, without having received a license as attorney or counselor, is declared to be guilty of a contempt of court: Sec. 281. Section 282 of the same code prescribes the duty of an attorney and counselor, by the provisions of which he is required, inter alia, to support the constitution and laws of the United States and this state, and to maintain the respect due to the courts of justice and judicial officers. Rules of duty are further prescribed in this section, which are intended to regulate and control the conduct of an attorney and counselor with regard to the public, and to those in whose behalf they appear in court, and exercise their appropriate functions. Authority is conferred on him in the discharge of his duties and functions, peculiar to his character as such: Sec. 283. He is subject to the authority of the courts, and may be, for cause shown, suspended or removed, and deprived of the right to pursue his profession, by the supreme court or either department thereof, or by a superior court: Sec. 287. One of the causes for which he may be removed or suspended is the following: “Lending his name to be used as attorney and counselor by another perBon, who is not an attorney and counselor": Sec. 287, subd. 4.
The foregoing provisions taken from a public statute are enacted not only in the interest of those who employ the services of attorneys, but in the interest of the community or public are large. They concern the administration of justice, always a subject of public concernment, and relate to a class of officers of courts in which the people of the state have an abiding interest. Bolte was never an attorney and counselor at law. He had never been admitted to the privileges or authorized to exercise the rights of an attorney and counselor. He had never assumed or been authorized to assume any of the functions of an attorney and counselor, nor was he bound by the obligations of such a position.
Now, if either of the attorneys who contracted with Bolto bad lent to the latter his name to be used by him as attorney and counselor, he would have been guilty of a violation of the elause above quoted from section 287 of the Code of Civil Procedure, for which he would have been liable to be removed or suspended, from the practice of his profession. Was not Bolte really allowed to use their names in the prosecution of a matter in litigation? Under the employment of them as attorneys, made through Bolte's procurement, they engaged to use their faculties as attorneys and counselors at law for his benefit, and that, too, in a cause in which he bad no interest as a party. By the terms of the agreement he was to derive a benefit from the rendition of their services in their professional capacity, and to receive a share of their fee, as if he had been concerned with them as a regularly admitted attorney. He is thus enabled, through their agency, vicariously, and not openly and in his own name, to aid in the prosecution of a matter in litigation, and to receive through it such a reward as is usually gained by an attorney regularly admitted to ex. ercise his profession. An attorney is prohibited to allow the direct use of his name as an attorney and counselor at law under the circumstances disclosed by the complaint in this case. Of what avail is such prohibition, if it can be, by such indirection as is practiced in this case, evaded? We are of opinion that the facts here disclose a case of indirect violation of the clause referred to, which is as much forbidden as a direct violation. If such a practice were allowed, an attorney might have a number of undisclosed associates through his agency exercising the functions of an attorney and counselor, and reaping the rewards flowing therefrom, without resting under any of the responsibilities incident to such a position, and possessing none of the qualifications which the law demands and requires. Such a practice would tend to increase the amounts demanded for professional services. In such a case, an attorney would be induced to demand a larger sum for his services, as he would have to divide such sum with a
We have examined Bunn v. Guy, 4 East, 190, and Candler v. Candler, Jacob, 225, cited by counsel for appellant to sustain the validity of the contract sued on. We do not consider them applicable to the case before us. The office of attorney in England is entirely different from that of an attorney and counselor in this state. In England the fees of an attorney are fixed by statute, or rules of court, or orders in council, and his bill of costs and charges for disbursements are subject to be taxed by a taxing officer, and the taxation reconsidered by buch officer. The decision of the taxing officer can also be revised by the judge on appeal: Weeks on Attorneys at Law, secs. 324, 325, et seq.
We cannot suppose that the fact that the attorney has to share the amount of his bill with an outsider would at all affect the amount allowed him. That amount would be the same, regardless of the circumstance that he was bound by his agreement to divide it with another. The laws of England regulating the appointments, duties, and conduct of attorneys have not been brought to our notice, and therefore we cannot determine how far the laws there prevailing permit or recog. nize as legal a contract made by an attorney to share his fees with a third person. Under such circumstances, this court could not, with any confidence, pronounce any judgment as to how such a contract would be affected by English statutes or rules of court.
In Bunn v. Guy, 4 East, 190, the validity of a contract between attorneys was called in question. A practicing attorney (Carpenter) agreed for a valuable consideration to relinquish his business and recommend his clients to two other attorneys (Bunn and Guy), and that he would not himself practice within certain limits, and would permit them to make use of his name in their firm for a certain time, without any interference on his part. The question arose in chancery concerning the marshaling of assets, and a case stating the above contract was sent by the lord chancellor to the court of king's bench for its opinion. The court certified their opinion to the court of chancery that the contract above stated was good in law.
In Candler v. Candler, Jacob, 225, an agreement by an attorney to pay a share of the profits of his business to the widow of his deceased father, who had been an attorney, was held valid. The agreement was made by deed between the widow of Henry Candler, the deceased father, and their son Henry Candler. It was recited in the deed that the agreement was entered into under a due sense of the influence which his mother and family could retain with his father's elients and connections, and the widow (Mary Candler) covenanted to use her utmost endeavors and influence to induce her friends and connections to employ him. The lord chancellor (Eldon), in delivering his judgment, said: “I have thought that, consistently with the policy of the law, agreements could not be made by which they (referring to attorneys] contract to recommend those who succeed them. I doubted whether professional men could be recommended, not for skill and knowledge in their profession, but for a sum of money paid and advanced. I knew that this would rip up many transactions, and I was happy that the court of king's bench was of a different opinion, though I never could entirely reconcile myself to their doctrine."
The opinion in Bunn v. Guy, 4 East, 190, was here referred to by Lord Eldon. In our judgment, the remarks of Lord Eldon, quoted above, may well create a strong doubt as to the correctness of the conclusion reached in Bunn v. Guy, 4 East, 190. However, for the reasons above given, we cannot follow the rulings in the cases just noticed. It is clear that the right of the plaintiff to recover herein is the same as that of his assignor, Bolte. If the latter cannot recover, neither can the plaintiff, his assignee. The considerations expressed herein have led this court to the conclusion that the contract sued on, and alleged in the complaint, is forbidden by the policy of the law, and void, and that the court below erred in denying the defendant's motion for a nonsuit. The motion for a new trial was, therefore, properly granted, and the order appealed from must be affirmed. The view taken herein disposes of the case, and it becomes unnecessary to pass on the other questions raised by counsel for appellant.
ATTORNEY'S CONTRACT TO SHARE FEES. - A contract with one that bo shall lend his aid in securing the appointment of another as special counsel to defend in a caso in procuring testiinony against the government of the United States, and in giving information for the management of it, upon consideration that the attorney appointed shall pay him one half of all the fees he shall receive in such case, is contrary to public policy and void: Meguire v. Corwine, 101 U. 8. 108, oited in note to Parsons v. Trask, 66 Am. Dec. 509.
[In Bank.) SANDERS v. RUSSELL.
[86 CALIFORNIA, 119.] HOMESTEAD. — ON THE DEATH OF A HUSBAND, community property of him.
self and his wife, held by them as their homestead, vests in her, and is
protected as her homestead to the same extent as before his death. HOMESTEAD, JUDGMENT AND EXECUTION LIEN UPON. Though a home
stead is in value largely in excess of the amount allowed by law, the levy of an execution upon it does not create any lien. Its operation is confined to serving as a foundation for proceedings under the statute for the ascertainment of the value of the property covered by the decla. ration of homestead, and the procurement of an order of court for the partition or sale thereof, and the application of the excess to the satis
faction of the judgment. PRACTICE - ESTATES OF DECEDENTS, PRESENTATION OF CLAIMS AGAINST.
If one has a judgment against the estate of a decedent, under which a levy has been made on a homestead in his lifetime, the plaintiff must present his claim upon such judgment to the administrator and procure its allowance, and is not entitled to proceed to have the homestead apo praised and sold or partitioned, and the excess above the amount of the homestead exemption applied to the payment of the judgmento Grove L. Johnson and Albert M. Johnson, for the appellant
A. P. Catlin and Lincoln White, for the respondent