The appellants, who are practicing attorneys, made a written agreement with the respondent for the prosecution by them in his behalf of litigation against various parties under a plan of contingent compensation. Said agreement amongst other things originally provided that the attorneys should receive for their services one-third of the proceeds of said litigation or the proceeds of the sale of certain stock, and nothing else; also that neither party to the agreement should "settle any of said litigations without the consent of each of the other parties." Subsequently this agreement was modified so as to provide that the compensation should be one-half instead of one-third.
Various actions and proceedings were instituted under this retainer and, as is claimed by the appellants, services of much value were rendered to the client.
After a time Snyder entered into negotiations with the parties whom he was prosecuting for a settlement of the litigation and not only without the consent of his attorneys *Page 69 but in spite of their protest made an agreement for such settlement for the sum of seventy-five hundred dollars. Still later a motion was made by the party with whom Snyder had made his agreement for an order settling and discontinuing the litigation for the sum agreed upon and to which motion both Snyder and the appellants were made parties. Notwithstanding the opposition of the latter and after the consideration of quite voluminous affidavits presented by the attorneys and the client respectively in opposition to and in support of the settlement, an order was made granting the motion upon payment into court of the sum of seventy-five hundred dollars "to respond to the lien of the plaintiff's attorneys."
Some time later a motion having been made by the client to withdraw one-half of this sum in accordance with the terms of the agreement between him and his attorneys, the court directed a reference to ascertain the value of the services which the attorneys had rendered in order that the amount of their claims and lien upon the fund might be determined before Snyder withdrew any money. This was done on the theory that Snyder by making a settlement in violation of the wishes of his attorneys had so broken his contract that the latter were no longer limited to the terms of their agreement for their compensation but were entitled to recover from the fund for the value of their services on the basis of quantum meruit. As already indicated, the Appellate Division took the view that this order was improper, holding that the attorneys were limited so far as their lien upon the fund in court was concerned to the compensation fixed by the original agreement and relegated for any further relief to an action against their client for breach of contract.
We think that the disposition made by the learned justice at Special Term was correct, and that it was error to reverse the order then made and substitute the one from which this appeal is now taken.
Some propositions involved in the appeal seem quite clear. The attorneys had a lien upon the moneys paid into court for *Page 70 the amount or value of their services whatever it might be. This was secured to them by section 66 of the Code, and in addition the order allowing the settlement of the litigation and directing the payment of the proceeds into court expressly provided that the latter should "respond to the lien of the plaintiff's attorneys" without any limitation upon the amount for which the said lien should be allowed.
If the clause prohibiting a settlement without the consent of the atorneys is valid, the client has prevented them from carrying out their contract, and they are entitled to treat it as terminated and recover the actual value of services rendered before the breach without reference to the terms of the original contract.
If the clause prohibiting the settlement without the consent of the attorneys is void as against public policy, so that it may be repudiated by the client, but yet is so connected with the clause prescribing the percentage of recovery which the attorneys were to receive as compensation that the latter clause falls with it, then again the attorneys must be entitled to recover the value of the services rendered by them upon the basis of actual worth.
While the adoption of either view, therefore, would render necessary an appraisal of the value of appellants' services, it is proper to determine which one shall prevail, assuming that the latter one is permissible, and in this determination the first and fundamental question will be as to the validity of the clause prohibiting a settlement.
It has been decided so often and so fully that attorneys may undertake litigation for a compensation contingent upon their successful efforts that it is unnecessary to refer to the decisions upon that point. But this court, so far as I am aware, has never yet decided the naked proposition now urged upon us that an attorney in furtherance of his contract for a contingent compensation may reserve a veto power upon the right of his client to make in good faith an honest settlement of his claim, and I think it would be unwise and opposed to sound public policy to so decide now. *Page 71
In the first place, a decision upholding such a contract would confer upon one person occupying a position of trust toward another unusual power over the latter in the control and management of his own property, for we must not forget that the attorney has only a lien upon the client's cause of action which still remains the property of the latter. It is not too much to assume that such power would at times be the source of abuse as between the two parties.
But more important than any such personal and private consideration is the one of public concern that such contracts would prove added obstacles to that quieting of disputes and to that adjustment and settlement of litigation which always has been and always should be favored by the acts of legislatures, the decisions of courts and the expressions of public opinion. For, in my judgment, there is no need of long argument to demonstrate that such contracts would prove such obstacles. We have before us in this very litigation an illustration of the manner in which they would be utilized if so permitted to prevent settlements even when the attorney and client were involved in no other differences than those of an honest opinion about the amount which ought to be realized from the litigation. And if this result would have happened where reputable attorneys were prosecuting what we are entitled to assume was legitimate litigation with due regard for the rights of their client, it requires no long vision to see how frequently the power would be used by reckless or unscrupulous attorneys to prolong litigation for the sole purpose of forcing a defendant or client or both to pay additional tribute in order to secure that settlement and peace which they desired, and public policy commended.
It is urged that this power is necessary for the protection of attorneys. Courts are not unmindful of the fact that the system of contingent compensation has the merit of affording to certain classes of persons the opportunity to procure that prosecution of their claims which otherwise would be beyond their means, and that the attorney should be protected from any dishonest attempt to deprive him of his compensation. *Page 72 On the other hand, no one having had an opportunity for observation can well close his eyes to the fact that this same system many times promotes litigation which is so unjustifiable that it does not even rise to the level of being speculative, and which being carried forward by unlawful and forbidden methods leads sometimes to the enforcement of unjust recoveries from unfortunate defendants, sometimes to the exaction of unconscionable compensation from ignorant or helpless clients, and always to stirring up discord and law suits. In view of the relief which courts render against settlements made with the dishonest purpose of cheating attorneys of their just compensation, it does not often happen that a reputable attorney undertaking legitimate litigation for a contingent compensation is deprived of his just dues, and there seems to be no substantial necessity for approving a form of contract which would enable unworthy members of the profession to increase existing evils through a power to manipulate and nullify any disposition upon the part of their clients to settle their differences.
While, as stated, the courts of our own state do not appear to have passed upon this precise question, whatever has been said upon this general subject of the right of a client to settle litigation without interference by his attorney confirms the view now being presented.
In Lee v. Vacuum Oil Co. (126 N.Y. 579) the attorneys for the plaintiff had an agreement for a contingent compensation with a clause providing that no settlement should be made without their consent. After recovery of judgment a settlement was made without the consent of the attorneys and subsequently a motion was made on behalf of them and of the client herself to vacate the settlement upon the ground of fraud. The question presented, therefore, arose between the attorneys and the opposite party and upon facts somewhat different from those before us. Still what was said by the court is pertinent to the general subject now being discussed. In its behalf Judge RUGER wrote as follows:
"We are of the opinion that the existence of such a lien *Page 73 in favor of the attorneys does not confer a right on them to stand in the way of a settlement of an action which is desired by the parties, and which does not prejudice any right of the attorneys. We do not think that such an agreement deprives a party of the right to control the management of his own cause, and to determine when the litigation shall cease and how far it shall be extended. The client still remains the lawful owner of the cause of action and is not bound to continue the litigation for the benefit of his attorneys when he judges it prudent to stop, provided he is willing and able to satisfy his attorney's just claims. In fact the lien under the agreement was intended for and operates only as a security for the attorney's legal claims, and unless those are prejudiced by the client's contract, she has unrestricted control of the subject of the action, and the terms upon which a settlement shall be effected."
Fischer-Hansen v. Brooklyn Heights R.R. Co. (173 N.Y. 492) was an action brought to enforce the lien of the plaintiff upon a judgment which he had recovered for a client against the defendant, and which judgment the latter, after notice of the attorney's lien, had secretly settled with the client, who was financially irresponsible. In writing in that case in behalf of a unanimous court, Judge VANN laid down principles which certainly guide us in the direction of the conclusions already stated. Referring to the lien given by the Code to the attorney upon his client's cause of action, he wrote as follows:
"The statute says that the lien (given by the statute) cannot be affected by any settlement between the parties before or after judgment, but does it mean that no settlement whatever can be made without the consent of the attorney? It clearly means this, unless the lien is impliedly transferred to the proceeds of the settlement. But did the legislature, in its effort to protect attorneys, intend to sacrifice the client by preventing him from making an honest settlement of his own cause of action? Did it intend to overturn the ancient and honored rule of law that settlements are to be encouraged, by *Page 74 giving the attorney power to insist that the litigation must continue until he consents that it should stop? Did it intend to so tie the hands of the client that he could not settle his own controversy without the permission of his attorney? A cause of action is not the property of the attorney, but of the client. The attorney owns no part of it, for a lien does not give a right to property, but a charge upon it. As it is merely incidental, and for the purpose of security only, it would not be reasonable to hold that the legislature intended it should be the means of blocking an honest and genuine adjustment of controversies. We think the lien is subject to the right of the client to settle in good faith, without regard to the wish of the attorney, and we so held in the Peri Case (152 N.Y. 521), where we declared that `the existence of the lien does not permit the plaintiff's attorney to stand in the way of a settlement.' * * * The legislature did not intend to make the lien the chief thing, nor to compel the client to abdicate his position as principal in favor of the agent or attorney whom he employed in order to secure his rights. It did not intend to prevent him from dealing with his own property as he saw fit, provided he exercised his honest judgment and took no advantage of his attorney."
In other states an abundance of authority is to be found for the doctrine that a clause prohibiting the client from making a settlement of his litigation without the consent of his attorney is void as against public policy. (Huber v. Johnson, Supreme Court of Minnesota, 70 N.W. Rep. 806; North Chicago, etc., R.Co. v. Ackley, 171 Ill. 100; Lewis v. Lewis, 15 Ohio, 715,716; Key v. Vattier, 1 Ohio, 132; Davis v. Webber,66 Ark. 190.)
These views lead to the conclusion that appellants are not entitled to recover from their client upon the quantum meruit upon the ground that the clause prohibiting a settlement was legal and, therefore, his acts in disregard thereof a breach of contract.
But I do think that they may still recover upon that basis upon the other theory suggested. *Page 75
The clause in the contract fixing the value of the services at a certain percentage of the recovery was connected with the provision that the attorneys should have a voice in any settlement and in determining the amount of any recovery by that process. The two clauses were manifestly part of a single plan. Therefore, when the client takes advantage of the invalidity of one clause and repudiates it, the other one cannot stand alone but must fall with it, and the result of this again is to permit the attorneys to recover for the services which they have actually rendered according to their real value and independent of the original provision in the contract upon this subject. (Davis v. Webber, supra; Gammons v. Johnson, 69 Minn. 488;Stearns v. Felker, 28 Wis. 594.)
The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs.