Ronald v. Mutual Reserve Fund Life Ass'n

30 F. 228, 24 Blatchf. 221, 1887 U.S. App. LEXIS 2435

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: February 14, 1887
• Status: Published

Opinion

Brown, J.

A motion is made on behalf of the plaintiff for the substitution of new attorneys, which is resisted on the ground of a special agreement made with the present attorney on his taking the cause, to-wit, that he should he paid 10 per cent, of the collection’s as his compensation. The action was for a recovery of $5,000 upon an insurance of the life of the plaintiff’s husband, now deceased.

The right, in general, of a litigant to change his attorney at pleasure, has been repeatedly affirmed. In re Paschal, 10 Wall. 483, 493-496; Dodge v. Schell, 20 Blatchf. 517, 12 Fed. Rep. 515; In re Wilson, 12 Fed. Rep. 235, 238, and cases there cited. In the present case not much progress has been made in the disposition of the cause. A demurrer to the complaint has not been argued, and the plaintiff’s proceedings have been stayed until security for costs on her part is filed. The plaintiff herself resides in Scotland, and is understood to be in poor circumstances. Her attorney in fact, who undertook the prosecution of her interests here, desired to be relieved of his charge; and a new attorney in fact has been substituted, by whom this application for a change of attorneys in the litigation has been promoted.

Contracts like that in the present instance, for the compensation of attorneys to be paid from the amount recovered, and contingent upon a recovery, are not to be construed as debarring a plaintiff from any change of attorney, nor as giving the original attorney an absolute control of the litigation to the end. Such a construction would bo impolitic in its results, and cannot be sustained. The agreement should be regarded as providing for the mode of compensation only, and subject to such reasonable changes and provisions as subsequent circumstances may make proper. The attorney has a lion upon the papers in his possession for his contingent fees, in case of final recovery, to the extent of the proportion of services already rendered. The motion for a substitution should bo granted, upon the plaintiff’s stipulation being filed with an order entered herein declaring the present attorney’s lien pro rata upon any moneys or judgment hereafter recovered, to the extent that may be hereafter determined, should the plaintiff be successful in the suit; and that notice of such lien be givep to the defendant. This will probably be a satisfactory security to the present attorney; if not, I will consider, any further application in that respect in his behalf.