surate with the profit to the syndicate, but with a guarantee from the syndicate of a minimum annual amount. In the opinion of the Committee, can the attorney properly accept such employment to be so compensated? If not, can he properly accept it for an agreed compensation not contingent upon such results? Answer. Assuming that the business to be carried on by the syndicate is lawful (upon which the Committee. expresses no opinion), and that the plan is not a cover for the solicitation of business by or for the attorney, the Committee sees no impropriety in his accepting such employment; but a majority of the Committee is of the opinion that his compensation should not be contingent upon the customer being procured, because the attorney should not engage in a business where he may be tempted by such method of compensation to color his opinions or computations in order to obtain the customer. We are not yet in a position to criticise contingent fees when contracted for on the lines countenanced by existing canons. But this concrete case illustrates the vice of any arrangement that subjects an attorney to the temptation or risk of coloring his course of conduct in counselling a client by hopes of employment or of increased compensation. IV The Committee respect fully recommends that it be continued. ALFRED E. HINRICHS, IRVING G. VANN, CHARLES A. BOSTON, J. NEWTON FIERO, FRANKLIN M. DANAHER, HENRY W. JESSUP, Chairman, Committee on Legal Ethics The President: We will pass now to the report of the Committee on Amendment of Procedure in the Federal Courts. That report will be presented by Mr. Wheeler. Everett P. Wheeler, of New York: Mr. President and Gentlemen. This report has been printed and is in the hands of the members of the Association. Therefore, I need not read it in full. We have no definite resolution in regard to any particular change proposed, but we state the fact that we have carefully considered the matters before. The main question before us has been the amendment of the Equity Rule which we do recommend. It has been found by the experience of many of us that the rule which was adopted of reducing to narrative form the testimony in cases, particularly in patent cases, should be changed, and we have come to the conclusion that it would be better to restore or at any rate permit the Court, at the option of counsel, to restore the practice of printing the record, question and answer. That is our recommendation, but no specific resolution is appended to the report. Therefore, I only state the substance of the report, and beg for it the serious consideration of the Bar so that when the matter comes back in more definite shape we may have your assistance. REPORT OF COMMITTEE ON AMENDMENT OF PROCEDURE IN THE FEDERAL COURTS To the New York State Bar Association: Your Special Committee on Amendment of Procedure in the Federal Courts, which was appointed pursuant to resolution adopted at the annual meeting in January, 1911, and has been continued at each succeeding annual meeting, submits the following report: At the last annual meeting of the Association your Committee reported progress on the status of the Bill then known as Senate No. 4551, authorizing the Supreme Court to prescribe forms and rules, and generally to regulate pleadings, procedure and practice on the common law side of the Federal Courts. It is now known as the Overman Bill, Senate No. 4740. Action on this Bill has hitherto been delayed because of the urgency of legislation growing out of the war. It has been once favorably reported in the Senate, however, and it is understood that a majority of the present Judiciary Committee is prepared to report it again. Our information is that it has some chance of passage by both Houses during the present session. There are two other matters to which attention has been given by your Committee. (1) Your Committee has received from A. Parker-Smith, Esq., of the Sub-Committee on Practice and Procedure of the Committee on Patents and Trade-Marks, of the New York County Lawyers' Association, a communication regarding a proposed amendment to Equity Rule No. 75 of the United States Courts. The present rule provides that: (b) "The evidence to be included in the record. shall not be set forth in full, but shall be stated in simple condensed form," etc. Conformity to this rule has been found impracticable in patent cases, where expert testimony of highly technical character forms a large part of the record. Many counsel have accordingly, with the sanction of the Court, sought relief in a subsequent provision of the rule that "if either party desires it, and the Court or Judge so directs, any part of the testimony shall be reproduced in the exact words of the witness." In some districts, however, the Judges have refused to allow this practice, with the result that the labors of counsel have been greatly increased, to no useful purpose. It is now proposed to amend the provisions of Subdivision (b), Rule 75, so that the subdivision will read as follows: (b) "The evidence to be included in the record need not be set forth in full, but may be stated in simple condensed form," etc. In recommending this proposed change, which has been approved by the New York County Lawyers' Association, the Sub-Committee stated the reasons for its conclusions as follows: "The suggested amendment to paragraph (b) of Equity Rule 75 would be most satisfactory as in effect legalizing the practice which has grown up out of the practical necessities of the situation, i. e., the practice of stipulating that the record on appeal may go up on question and answer, and then obtaining from the Court an order under such stipulation on the ground that the case presents special features requiring such practice to be followed, and as substituting for the present mandatory and inflexible rule an entirely flexible provision under which there will be complete freedom to follow the particular course which may most conduce to economy and simplicity of procedure in any particular case. While the hardships of the present rule bear most severely upon litigants and counsel in patent cases, and your committee has considered the advisability of recommending that the above amendment apply only to patent cases, it is believed that the better course would be to make the rule universal in its scope as the rule of the State courts has recently been changed to effect the particular reform here contemplated and it seems to be the experience of general practitioners that the old rule in the State Courts, and the present rule in the U. S. Courts, requiring the making of an abstract of the evidence, were costly and burdensome in their operation and afforded opportunity for the shading and manipulating of the testimony in the making of the abstracts required." Your Committee concurs in the views above quoted, and recommends that this Association should approve the proposed amendment. (2) Your Committee has had occasion recently to consider the inconsistencies and confusion existing with regard to the law of removal from State to Federal Courts. The decisions in the various circuits on this subject, and even the decisions of different Judges in the same circuit, are often quite irreconciliable. There is an urgent need of reform in this matter, and it has been suggested that this Association. should bring the existing conditions to the attention of the appropriate committees of Congress and urge suitable legislation. The subject is one of great complexity, and there is some ground for difference of opinion regarding the fundamental principles involved. In the time at the disposal of your Committee, it has not been found practicable as yet to formulate any definite recommendations, but the subject has been taken up with the Procedure Committee of the American Bar Association with which your Committee will co-operate in further consideration of the matter. All of which is respectfully submitted. ARTHUR H. MASTEN, Chairman. HENRY L. STIMSON, FREDERIC W. HINRICHS, LEWIS L. DELAFIELD, EVERETT P. WHEELER, Committee. |