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Social Welfare, 30 Yale Law Journal 82 (1920)


A field in which reliable social welfare statistics as to the effect of legal principles in actual operation would be of inestimable value in deciding what the law ought to be, is that of attorney's contingent fee contracts. The argument from necessity for such contracts is obvious: that otherwise poor suitors with deserving cases would find it impossible to get their cases into court. Hence the validity of such contracts is usually upheld in this country. Just as obvious is the fact that there is now afforded unworthy members of the profession an opportunity availed of all too often for making extortionate and unconscionable agreements and for speculating in weak cases, accompanied, as such practice usually must be, by the worst forms of solicitation and touting of business. Statistics, if available, as to the number of meritorious cases saved by contingent fee contracts, the number of cases decided for defendants instituted under such agreements and the like would throw much light upon the desirability of the present legal viewpoint. The proper result may well be that it is more desirable to provide for the needs of poor litigants in other ways, such as the legal aid society and similar agencies. At any rate courts may well refuse to uphold such contracts when the necessity for them does not exist or is outweighed by other considerations. Thus the law's well-known abhorrence of divorce leads to a refusal to enforce contingent fee contracts to procure divorces. In Baca v. Padilla (1920, N. M.) 190 Pac. 730 , the same principle was applied to an attorney's contract to assist in the prosecution of a criminal case for a fee contingent upon the conviction of the accused. There has been considerable question as to the wisdom of allowing private counsel to assist in public prosecution at all; whether the interest of state and accused are not better served by having the prosecution entirely in the hands of a disinterested public official. Most courts have thought such assistance permissible, however, so long as the actual control of the prosecution remains with the public prosecutor. But a contingent fee contract under such circumstances must rest upon not one but two principles of doubtful societal value and the court properly refused to enforce it.

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Social Welfare, 30 Yale Law Journal 82 (1920)

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