In re the Committee on Rule 28 of the Cleveland Bar Ass'n

OPINION

By MAUCK, J.

It is not necessary to extensively review the evidence before us. That was well done by the able trial judge. The Brotherhood of Railway Trainmen is made up of many thousands of train men engaged in hazardous work resulting in many claims against the employing railroad companies for injuries to such trainmen and for death losses. These claims sometimes fall into the hands of incapable, indolent, inexperienced or dishonest lawyers with resulting loss to the claimants. Sometimes the compensation exacted by lawyers is too much. To protect the members of the Brotherhood the officers devised and put into operation a plan whereby those officers employed counsel for a certain region to represent all those in that region who wanted to assert a claim against their employers. For the region of which Ohio is a part the respondent firm was made such regional counsel. It is conceded that the object of the plan, so far as the Brotherhood is concerned is a noble one. No question is made that the Brotherhood has a right to make rules for the government of its members, nor is it claimed that the Brotherhood is subject to Rule XXVIII of the Supreme Court, or the established Canon of Ethics of the Ohio Bar. The question before the court at this time is solely whether a lawyer or a firm of lawyers in becoming a party to the Brotherhood plan violates this particular rule or the general canon.

The plan is this:

When an injury is suffered by a member, information to that effect is sent to the Legal Aid Department of the Brotherhood. This department secures such facts as it can by means of a questionnaire and tenders its services for a more detailed investigation. Upon request it puts its own investigators to work to secure the evidence. If legal advice is needed it consults Regional Counsel. If it seems desirable to bring legal proceedings the Legal Aid Department advises the claimant that he can employ whomsoever he wishes, but it advises that he employ Regional Counsel. It says. that Regional Counsel is peculiarly qualified to prosecute his action and that while others will charge a higher commission that Regional Counsel will charge him but twenty percent of the recovery and will advance for him necessary costs and expenses. If the claimant follows the advice so given he signs a contract with Regional Counsel by which he agrees to compensate such Counsel with fifteen percent of the recovery and agrees -that such counsel shall further pay over to the Legal Aid Department five per cent of such recovery. It further appears that the Department publishes in its monthly Journal the name and address of the Regional Counsel as such. Exhibit F, setting up the nature of this set-up would indicate that its terms had been formally accepted by Regional Counsel at Birmingham, but it appears that the respondent firm has not in writing formally assented to its terms. It does appear, however, that it recognizes an implied obliga'tion to perform pursuant to its terms. The respondent is, therefore, agreeing to take such cases for personal injuries as come to it through the Legal Aid Department for fifteen percent contingent fee and to collect and remit to the Department an additional five percent of such recovery. This is admittedly a low figure. The respondent accedes to it, however, and the only reasons apparent therefor are that it may reasonably expect that it will secure a large volume of business because of the continuous solicitation to that end being made by the Department and for the favorable publicity resulting from its continuous free advertising in the monthly journal of the Brotherhood.

The results of this plan are these: The Legal Aid Department by publication in the Brotherhood Journal, by circulating the locals, by personal representations and by about all the methods known, is constantly soliciting legal business for the respondent firm. That firm in turn, knowing exactly how its business is being solicited for it impliedly assents to such solicitation and because it expects to get a large volume of business fixes an iron-clad fifteen percent contingent fee, plus a further five percent charge to be collected by it and paid over to the soliciting agency. It is the sheerest sophistry to say that under these circumstances the respondent is not itself soliciting. It is slight compliment to the perspicacity of others to assume that so flimsy a fabric can effectively disguise the real character of the arrangement. Even “the old women that sit on the committee of Legal Ethics of the American Bar Association” as one of the respondent firm graphically puts it, (p. 553) ought not be deceived by such a device.

Because we find that the respondent firm is, however, guilty of violating the general canon of ethics and the particular rule of the Supreme Court it does not follow that the petitioners are entitled to the relief sought. This is not a case in chancery. To be sure the question of procedure in this court has been waived by a refusal to file a motion to dismiss the appeal. Drake v Tucker, 83 Oh St 97. This waiver, however, runs only to the nature of the review in this court. The consent of the parties can not convert a special proceeding into an equitable action.

Courts undoubtedly have inherent power to discipline attorneys practicing before them. The method for such discipline is, however, regulated by 81707 GC, which provides a special proceeding therefor. The disciplinary measures thus provided for are reprimand, suspension and disbarment. In the instant case it is urged that the equitable remedy of injunction be applied. The difficulty of regulating the practice of a profession by injunction must be apparent. Were such a writ to issue in the case at bar, the scheme under review might at once be modified by the interested parties abandoning the advertisement in the Journal, or by abandoning the collection of the five percent or by otherwise altering some particular item of the plan with the result that new actions would arise, or this court be required by contempt proceedings to determine from time to time just how far a process of erosion would be permitted to go in breaking down the established canons of the procession. The court ought not be so used.

If injunction issue in this case there is no reason why this court should not be called upon to regulate the methods' of other lawyers by the same sort of process'. Each such firm might well see how close it might come to a violation of the rules of practice without being disciplined at all. The letter and spirit and object of the rule are clear. The method of discipline is plain and adequate. Those desiring to avoid.its violation can do so by refusing to be a party to any plan that is of doubtful ethics; indeed, they need no “plan” at all. The philosophy underlying the Code of Ethics is that the essential merits of a lawyer need no exploitation; that if a man can better try a cause than his fellows, like the man that builds a better mouse .trap, the world will beat a path to his door.

Injunction is primarily a writ to protect property rights. Sometimes it has been extended to personal rights and there is a tendency in some states to extend equitable jurisdiction to cover personal rights where otherwise justice can not be accomplished. The Supreme Court of this state has not gone so far. Snedaker v King, 111 Oh St 225, was a case more nearly justifying equitable interposition than the case at bar, but under the broad doctrines entertained even by the dissenting judges in that case, injunction could not issue in this case because in the case at bar the petitioners have neither property nor personal rights to be protected.

In denying an injunction we in no way reflect upon the power of the Common Pleas to make the general inquiry it did into the conduct of its practitioners. That power was sustained by the Court of Appeals of Summit County, 26 O.R. 255, and is thoroughly vindicated by the masterly opinion of Cardoza, J, in People ex Karlin v Culkin, 248 N. Y., 465; 162 NE 487; 60 A. L.R. 851. We do, however, hold that when the facts have been developed by such inquiry a proper remedy to apply is one of those prescribed by §1707 GC.

It is possible that §1707 GC is not constitutional; that the discipline of attorneys is essentially a judicial function upon which the legislature may not trespass and that the courts may employ the remedies recited in that section or any other, including injunction, as the exigencies of a particular situation may require. Into that field we shall not enter. A statute is not avoided as repugnant to the constitution unless the need therefor is imperative. In the case at bar the statutory remedy will be as effective as injunction. It is not believed that the respondent firm will attempt or desire to pursue a course of conduct that is determined by the courts to be improper, or that any attorney will court the severer statutory penalties that would follow a persistent adherence to unethical practices.

Upon the facts before us the judgment of this court is that the respondent firm, Newcomb, Newcomb and Nord, be reprimanded for entering into and continuing the arrangement herein denounced, and the journal entry herein shall constitute such reprimand.

Costs adjudged against respondent firm.

LIEGHLEY, PJ, concurs.

LEVINE, J, dissents.