David Hoffman's Fifty Resolutions VI
Bill Long 12/13/05
27. "I will charge for my services what my judgment and conscience inform me is my due, and nothing more. If that be withheld it will be no fit matter for arbitration; for no one but myself can adequately judge of such services, and after they are successfully rendered, they are apt to be ungratefully forgotten. I will then receive what the client offers, or the laws of the country may award; but in either case he must never hope to be again my client."
COMMENT: The difference between Hoffman's Resolution 27 and Canon 12 (1908, covering attorney fees) is that by the time you get to 1908 the profession had an interest in establishing what we may call 'objective indicia' for attorney fees (time and labor required, difficulty or novelty of questions involved, skill necessary to accomplish the task, etc.). Hoffman's approach is not only entirely subjective but is what we might call subjective with a vengeance. We get the impression that charging fees partakes of professional judgment as much as any decision regarding how to pursue a case. That is, the lawyer consults himself alone. This is the reason behind the uncompromising language in the second half of the Resolution--if some "official" body wants to set another fee, that is ok, but 'screw you.' Questioning fees is tantamount to questioning attorney judgment or competence. I don't think we would see things that way today, but it is a point worth discussing.
28. "As a general rule I will carefully avoid what is called the 'taking of half fees.' And though no one can be so competent as myself to judge what may be a just compensation for my services, yet when the quiddam honorarium has been established by usage or law, I shall regard as eminently dishonorable all underbidding of my professional brethren. On such a subject, however, no inflexible rule can be given to myself, except to be invariably guided by a lively recollection that I belong to an honorable profession."
COMMENT: The more you get into Hoffman's words, the more you wish you knew legal history in much more detail. Blackstone, in his Commentaries (3.3) speaks of the ancient practice of attorneys in Rome and the early common law as a practice "for honor merely, or at most for the sake of gaining influence." Thus, at common law an attorney could not maintain an action for his fees for, they are given "not as locatio vel conductio, but as quiddam honorarium; not as a salary or hire, but as a mere gratuity, which a counsellor cannot demand without doing wrong to his reputation." So we see that Hoffman is quoting Blackstone's phrase even though he is making a different point. What he is about here is not undercutting his competitors. This is alluded to in Canon 12(3) also. He knows his worth as an attorney, and he will not undercut the competition.
29. "Having received a retainer for contemplated services, which circumstances have prevented me from rendering, I shall hold myself bound to refund the same, as having paid to me on a consideration which has failed, and, as such, subject to restitution on every principle of law, and of good morals, and this shall be repaid not merely at the instance of my client, but ex mero motu."
COMMENT: When you don't do the work, you return the client's money. The Latin phrase ex mero motu means "of his own mere motion" or "of his own accord." It is synonymous with the more frequent (in 2005) sua sponte. Black's Law Dictionary indicates that the phrase comes from patent law. In England, royal letters patent were granted at the crown's own instance, and without request made, and were thus issued ex mero motu. But this brings up all kinds of interesting questions about the history of patent law, doesn't it? I can't get bogged down in them here.
30. "After a cause is finally disposed of, and all relation of client and counsel seems to be forever closed, I will not forget that it once existed, and will not be inattentive to his just request that all of his papers may be carefull arranged by me, and handed over to him. The execution of such demands, though sometimes troublesome, and inopportunely or too urgently made, still remains a part of my professional duty, for which I shall consider myself already compensated."
COMMENT: Return the files to the client after the case is over. But Hoffman doesn't make an important distinction. What do you keep and what do you return to the client? The modern codes speak to this though the 1908 Canons were mum on the issue.
31. "All opinions for clients, verbal or written, shall be my opinions, deliberately and sincerely given, and never venal and flattering offerings to their wishes or their vanity. And though clients sometimes have the folly to be better pleased with having their views confirmed by an erroneous opinion than their wishes or hopes thwarted by a sound one, yet such assentation is dishonest and unprofessional. Counsel, in giving opinions, whether they perceive this weakness in their clients or not, should act as judges, responsible to God and man, as also especially to their employers, to advise them soberly, discreetly, and honestly, to the best of their ability, though the certain consequence be the loss of large prospective gains."
COMMENT: "Assentation," according to the OED, is "the act of assenting to the opinions of another; esp. obsequious or servile expression or act of assent." I think the word needs to be recaptured, don't you? We have three-word phrases in English now that approximate the word ("kissing the...") but I like assentation better. Lest we miss the point, however: the duty of the lawyer is not first of all to the client. It is to the lawyer's conscience, God, the profession. We should act this way "though the certain consequence be the loss of large prospective gains." This is idealistice to be sure, but a kind of bracing idealism.
32. "If my client consents to endeavors for a compromise of his claim or defense, and for that purpose I am to commune with the opposing counsel or others, I will never permit myself to enter upon a system of tactics, to ascertain who shall overreach the other by the most nicely balanced artifices of disingenuousness, by mystery, silence, obscurity, suspicion, vigilance to the letter, and all of the other machinery used by this class of tacticians to the vulgar surprise of clients, and the admiration of a few ill-judging lawyers. On the contrary, my resolution in such a case is to examine with great care, previously to the interview, the matter of compromise; to form a judgment as to what I will offer or accept; and promptly, frankly, and firmly to communicate my views to the adverse counsel. In so doing no lights shall be withheld that may terminate the matter as speedily and as nearly in accordance with the rights of my client as possible; although a more dilatory, exacting and wary policy might finally extract something more than my own or even my client's hopes. Reputation gained for this species of skill is sure to be followed by more than an equivalent loss of character; shrewdness is too often allied to unfairness, cuation to severity, silence to disingenuousness, wariness to exaction to make me covet a reputation based on such qualities."
COMMENT: I suppose he, if alive today, wouldn't be leading the Dispute Resolution movement, though I think he has a good point. If you know your "bottom line," why wheedle and finagle? I would like someone who works in DR to comment on this one. Does it have merit?
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