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were not pertinent to the case being tried at the time it was uttered. And it was conceded that if the language had been written and the action had been for libel the plaintiff would have been entitled to damages. But the Court ruled that the words used were not actionable per se because they did not touch the plaintiff in his business, or profession, or office, and that the language could not be rendered actionable per se as imputing to the jury the commission of a crime through a breach of the following provision of the Kentucky statutes: “If a juror in any case shall take or agree to take anything directly or indirectly, to give or refrain from giving his verdict, or shall, from favoritism or corrupt partiality, give or refrain from giving his verdict, and shall be thereof convicted, such juror shall not thereafter serve on any jury, and shall be fined one hundred dollars, and a sum equal to ten times the amount received or agreed to be received." The opinion says:
"If, therefore, the words spoken had charged this jury with having taken or agreed to take anything directly or indirectly to give a verdict, or that its verdict was given from corrupt favoritism or corrupt partiality, then they would be actionable as imputing moral turpitude involving an offense for which the members of the jury might be indicted and punished. But we do not think the words spoken can be fairly construed into a charge that the jury was guilty of the offense described in this statute. The petition avers that the appellee meant to, and did, charge the plaintiff, as one of the jury, with the crime of perjury, and it is argued that the meaning of the words spoken was that the plaintiff and the other members of the jury had committed the crime of perjury by violating the oath they had taken to try the issues joined and a true verdict rendered by returning a verdict that they knew to be wrong. But it does not aver that appellee, by the use of the words spoken, intended to charge that the jury was influenced by corrupt favoritism or by corrupt partiality to give the verdict, although it would seem to be a more reasonable inference from the words spoken that the speaker had in mind to charge the jury with corrupt favoritism or partiality rather than with the commission of the crime of perjury.
"But, however this may be, the meaning of the words spoken cannot, of course, be enlarged by innuendo (Moore v. Johnson, 147 Ky., 584, 144 S. W., 765). The words are to be taken in their usual and ordinary acceptation, and so treating them, we do not think they can be construed as either charging perjury or corrupt favoritism or corrupt partiality. If the jury returned a verdict they knew to be wrong, they, of course, committed an offense against the administration of justice and did a wrong to the Allegheny Coke Company. But this wrong they might have done without being guilty of perjury or being influenced by corrupt favoritism or partiality for Massy. And so we think the words spoken are not actionable per se.
"It is, however, insisted that, although the words may not be actionable per se, they are actionable because spoken of the appellant in respect to an office, and the attempt, therefore, is made to bring the words within the class that makes it actionable to impute unfitness to perform the duties of an office or employment. But we think the position of a juror is not an office or employment within the meaning of these words as employed in the quotations from Williams v. Riddle (145 Ky., 459). The words "employment, profession or trade' means some business, employment, profession or trade in which the complaining party is engaged and in the conduct of which he has sustained some injury on account of the slanderous words; and the word 'office' means some public position with honors, emoluments or profits the enjoyment of which may be affected by the words, and a juror does not hold such an office as this. His duties are transitory and subject to be terminated at any time. He is merely selected out of the body of the people for the purpose of discharging, at the will of the court, responsible and honorable public duties that the State has a right to call upon its citizens to perform. He is for the time being an officer of the court, but holds no office or employment that could be affected in a pecuniary way by slanderous words (Townshend on Slander and Libel, pp. 287, 311; Newell on Slander and Libel, p. 168)."30
PROFE-SIONAL ETHICS-ANSWERS OF THE NEW YORK COMMITTEE.
DIVORCE ACTION—COLLUSION.--A husband, five years ago, became infatuated with another woman and, since that time, has made life with him so intolerable that his wife has accepted his frequent invitations to leave and has left him. The wife now resides in New York County, while the husband continues to reside in the county where both formerly lived as man and wife. Before the final rupture, and as part of the causes leading to it, the husband repeatedly told the wife that he had been unfaithful, that he intended to continue to be so, and that evidence existed which would entitle her to an absolute divorce. He gave her no details by which she could, unaided by him, obtain for herself such evidence. Certain real property purchased by the husband stands in the name of the wife. In certain other real property of the husband she has an inchoate right of dower. She desires a divorce but has no means with which to watch for and obtain evidence of probable and threatened future delinquencies of the husband. He has offered, and repeats his offer through his attorney, to furnish the names of witnesses to offences which occurred before the rupture, on condition that terms satisfactory to him in regard to alimony and the disposition of the real property above mentioned are agreed upon and that the action be brought in the county of the wife's present residence. Is it proper for her attorney to bring an action for absolute divorce, upon evidence so obtained, the attorney, by the way, having been retained a day or two before the rupture? Would such an action be collusive? The question is asked by the attorney for the wife and he does not desire to participate in a collusive action. Answer.-The propriety of the suggested agreement is not to be determined solely by the test of collusion. The acts of which evidence is to be secured are stated to have been already committed, and this circumstance would seem to avoid the charge of collusion in its technical sense (Dodge v. Dodge, 98 App. Div., 85, 88); however, the attorney in a divorce case should regard with disfavor any offer by the adverse party to stipulate to furnish witnesses to the past offense charged, in consideration of stipulations as to alimony, release of dower, etc. (See Train v. Davidson, 20 App. Div. 577.) A majority of the Committee is of the opinion that, nevertheless, in the case submitted, if the attorney for the wife be satisfied of her good faith, it would not be improper for the attorney to bring the suit in the manner and pursuant to the arrangement stated, provided that the whole agreement be in writing and be expressly made subject to the approval of the Court, and a full disclosure thereof and of all the facts relating thereto is made to the Court at the trial (see Schesinger V. Kling, 112 App. Div.
80 Smallwood v. York, 173 S. W. 380.
853), and the client be advised of the fact that the Court may decline to confirm it.
SHOULD A LAWYER EVER DECEIVE A CLIENT.— A lawyer's former client has been duly and legally committed to an asylum as a person of unsound mind; but he conceives himself to be wholly competent and therefore illegally restrained; he frequently solicits the lawyer's assistance to se. cure his release; the lawyer has no doubt of his incompetency or of the propriety of his commitment and retention, and knows of no justifiable ground for assisting him; but the lawyer is advised by his client's phy. sician that it will improve his client's physical and mental condition to believe that the lawyer will assist him, and consequently both physician and members of the incompetent's family have importuned the lawyer to deceive his client into the false, but to him reassuring belief, that his lawyer is endeavoring to secure his release. Should the lawyer refuse to humor his client and to yield to the importunities? Answer.-However laudable the physician's proposal may appear from a medical point of view, the lawyer in the case suggested is not warranted in using the fact of his official position to carry out the deception.
RIGHT TO ACCEPT EMPLOYMENT FROM CLIENT'S WIFE.--An attorney discovers through his professional relations with a client facts which convince him that his client is mentally incompetent and is about to bring financial ruin upon himself and family through his improvident and reckless business transactions. 1. Can the attorney properly accept employment from the client's wife to have him legally decreed incompetent? 2. If the answer be in the affirmative, can the attorney properly utilize in behalf of the wife's application the knowledge of the husband's affairs and acts which he acquired during his employment by the husband? 3. Can the attorney in legal proceedings instituted by the wife, to have her husband legally declared incompetent, testify concerning said affairs and transactions? Would it make any difference in the answers, or any of them, if it were assumed that the attorney believed or even knew at the time of his employment by the husband that he was mentally incompetent, and accepted the employment with the knowledge and consent of the wife in the belief that he could thereby so advise the incompetent as to prevent loss through his ill-advised and reckless conduct? Answer.Subdivision 1 and subdivision 2 of the question should be answered in the afirmative, and subdivision 3 of the question should not be answered by this Committee, because it presents a pure question of law. (See Secs. 835, 836, Code of Civ. Proc., and in re Cunnion, 201 N. Y., 123.) The last paragraph of the question should be answered in the negative. In making the above answer, the Committee has assumed that the lawyer in question is acting from good motives in the way that he deems best for the true interests of the supposed incompetent, and that he has no reasonable doubt as to his client's incompetency.
ADVERTISING.-Is the following advertisement by a lawyer improper: "Will handle a few deserving law cases without any fees except actual court costs and expenses. P. 0. Box- "? Answer. The advertisement is improper. Such solicitation of employment, whether gratuitous or not, is derogatory to the dignity of the profession, and too readily opens the door to imposition. The Committee again calls attention to Canon 27 of the Canons of Ethics of the American Bar Association.
SOLICITATION OF PROFESSIONAL EMPLOYMENT AND KINDRED Evils. -In a recent address before the Milwaukee Bar Association Mr.
Walter D. Corrigan, its President, spoke very plainly and very forcibly on the above subject. He said:
The subject of ambulance chasing has often been considered by this and other bar associations. Most of the fire has been directed against the solicitation of employment for plaintiffs in personal injury suits. Not much has ever been said publicly about the practices of casualty companies, and other claims organizations in behalf of defendants. I have always construed the term “ambulance chasing" as equally applicable to all who chase the ambulance, whether after the business of the plaintiff, or making the chase with a view of defeating his claim, or hypnotizing him into a nominal settlement. Both are evils, whether done by lawyers or by others, and both tend to invite situations which do not promote the administration of justice.
The solicitation of other kinds of law business should be equally condemned, as well as all methods tending to prompt dishonest claims or to defeat honest ones. It is time for all lawyers to approach this and kindred subjects in a broad and tolerant spirit, and with a willingness to surrender the advantages all such practices have furnished them or their clients. This should be the basis for our demands that others comply with higher ethical standards. We do not always see ourselves as others see us. We look at things from different viewpoints. Our opinions are too much influenced by blind prejudices, indulged for the selfish interests of clients. We have 'no more right to enter upon ethical discussions without purging ourselves than we have to enter a court of equity with unclean hands.
I want to treat these subjects in a comprehensive way. I want to reach common ground upon which all good lawyers and good men can stand together, tolerant of each other, and courageous in a common cause, to inaugurate reform where reform is needed, and promote the highest standards in all respects as affects the profession and the cause of justice.
It is axiomatic that it is as wrong to solicit one kind of professional employment as another, for in either event the wrong is the fomentation of litigation, the exciting and stirring up of strife and contention. Ambulance chasing in behalf of either side should be treated alike, because it is, in either event, as all kindred evils are, a perversion of the remedial process of the law, and an engine of oppression.
I submit that ambulance chasing has grown to its present proportions on both sides after a rule analogous to “competition is the life of trade," the competition being between those seeking to act in some way for a plaintiff and those seeking to defeat his claim, or secure a release for a nominal sum. When the injured man's ambulance starts him to the hospital, all the "gammons" and "snaps" and solicitors and adjusters run after him. At that same moment, according to an organized system, the wires have clicked the news to an interested casualty company, or other claims organization, and their physician and claim agent (sometimes one man, and sometimes two) aeroplane into the ward to perform the twofold virtue of administering "first relief" and getting a release. The race is on between the “provokers of strife" and other "engines of oppression." The first crowd runs because the other flies, and the other flies because the first one runs.
Would to God the Bar could influence constructive reform legislation to answer the calls of humanity and effectuate the alleviation of human suffering, and that justice might be left to work itself out in its own good time and in God's own way, unhampered by the provokers of strife, the claim agent, or the physician, who mixes his service for God with the service of mammon.
It is useless to suggest reform unless it is comprehensive. It is already unlawful for Wisconsin lawyers to solicit employment, and it is to the credit of the bar that they do little of it, and to the good fortune of the few that do, that lawyers generally do not know about it.
There is, therefore, not so much need for legislation directed against lawyers of Wisconsin as against the practice of others whose cases I have mentioned.
What we need is legislation that will reach the evils and all of them. No one-sided propaganda can ever go through.' The horses must all be taken out of the race and the poolrooms closed. What is good form for personal injury cases is good form for all other professional employment. The same is true of all types of ambulance chasing and ambulance chasers. A rule of conduct for one citizen must be the rule for another. It is bad for Wisconsin lawyers to foment strife and contention or otherwise pervert the remedial process of the law, and it is none the less wrong for others, whether laymen or foreign lawyers, to do it. If there is hope of reforming legislation, that hope lies in thoroughly covering every field germane to these subjects I have referred to.
The alleged reform bill in the last Legislature failed, because it was one-sided and did not go half far enough. It would have reached no situation not covered by the rule of common law. Its own short-comings were sufficient to kill it, and it died while yet very young.
The Legislature did as well on this subject as it did on many others. Our propaganda failed. Some lawyers wanted one-sided legislation, but would rather have none than ours. It was thought better by some to leave it unsettled than to encourage the danger of settling it right.
The Committee bill which I opposed, attempted to legislate merely as to members of the bar of this State, for which there was little, if any, need. One of the greatest evils in Wisconsin in the matter of the solicitation of personal injury business is the invasion of the State by those from outside. Foreign adjusters and local agents for outsiders and the foreign lawyers themselves, are soliciting constantly. Such a Legislative act would be an open invitation to continue the practice, for by its very terms foreign lawyers and solicitors and all agents of both, were left out of the proposed act. The real important personal injury cases having their origin in Wisconsin are now in the hands of foreign lawyers, as a result of solicitation, both direct and indirect, by organizations of attorneys in St. Paul and Minneapolis and Chicago. We can exercise no control over them as lawyers; they are free lances, but we can make it a crime to solicit in Wisconsin, and that will reach both lawyers and laymen.
I objected to the proposed act because it dealt but halfheartedly with a few of the evils and fostered and invited a multiplication of the worst.
I drafted and proposed a substitute bill providing as follows:
(1) No attorney at law, admitted in this State or elsewhere, shall either directly or indirectly, by himself or by any person, either before or after action brought, or other proceedings taken, or professional services rendered, promise or give any valuable consideration to any person or corporation other than an attorney at law, as an inducement, or in consideration of having placed in his hands, or in the hands of another, any alleged claim, debt, cause of action or demand, of any nature whatsoever, or any defense or any matter or thing whatsoever, upon which such attorney at law is expected to render professional services.
(2) No attorney at law, admitted in this State or elsewhere, shall, directly or indireetly, divide or share with any other person not admitted to practice law, any fee, emolument, or compensation of any kind or nature nor shall any claim adjuster or solicitor of business, policeman,