West Virginia. Vance v. Ellison (1915) 76 W. Va. 592, 85 S. E. 776.

England.-Re Haslam [1902] 1 Ch. 765, 71 L. J. Ch. N. S. 374, 86 L. T. N. S. 663, 50 Week. Rep. 444, 18 Times L. R. 461.

Canada.-Preston v. Nugent (1900) 13 Manitoba L. R. 511.

Thus, in Ware v. Russell (1881) 70 Ala. 174, 45 Am. Rep. 82, the court said: "All contracts between attorney and client, made after the formation of the relation, touching the compensation of the attorney, or by which the client transfers to him an interest in the matter of suit, or a right or interest in and to property involved in litigation, are closely watched, and jealously scrutinized, when, as between them, their validity is drawn in question. The confidence. the relation involves, the power over the client, the attorney naturally acquires, the opportunity and danger of oppression, and the exercise of influence compel courts to a most jealous supervision of all such contracts; and as between attorney and client, they are supported only when all the circumstances attending them import that they are fair, just, and untainted with an abuse of the relation."

In Planters' Bank v. Hornberger (Tenn.) supra, the court, after an extended review of American and English authorities passing on the validity of contracts made between attorney and client, said: "We, therefore, declare that, in all cases where the relation of attorney and client exists,

and it is desired to make further professional engagements: First, that it is the duty of the attorney to have the contract (if there be one) clearly and definitely stated, and understood not only in its language, but also in its spirit, legal consequences, and practical results; second, that the means used to obtain the contract be free not only of fraud, actual or constructive, but also of any other inequitable consideration: third, that every material circumstance or fact connected with the execution of the contract, and calculated to inform the client of his rights and responsibilities, be declared to him without reservation; fourth, that the attorney inform himself of all such facts and circumstances which would reasonably come within the knowledge and which would likely prevent the execution of the contract by the client; fifth, that he does not contract for a greater benefit than his services are reasonably worth, with reference to the trouble and difficulties of the particular case, amount involved, either of pecuniary character or reputation personally, etc.; sixth, that the onus shall devolve upon the attorney to show that the contract was free from all fraud, undue influence, and exorbitancy of demand; seventh, that the attorney, having performed his part of the contract reasonably and with due skill and diligence, without regard to the result of the litigation, shall be entitled to recover the amount specified, provided he brings the contract within the foregoing principles; eighth, in the absence of a contract, the attorney is entitled to recover upon a quantum meruit for such labor as he shall have performed."

The fact that the right of an attorney to contract with his client is specifically recognized by statute does not abrogate the rule that a contract for compensation made while the fiduciary relation exists is subject to the strict scrutiny of the court and must be fair and reasonable in order to receive its sanction as a valid agreement. Beals v. Wagener (1891) 47 Minn. 489, 50 N. W. 535 (under statute authorizing attorney and client to contract for compensation);

Ransom v. Ransom (1911) 147 App. Div. 835, 133 N. Y. Supp. 173; Haight v. Moore (1874) 5 Jones & S. (N. Y.) 161; Mason v. Ring (1861) 3 Abb. App. Dec. (N. Y.) 210, 2 Abb. Pr. N. S. 322; Preston v. Nugent (1900) 13 Manitoba L. R. 511. See also Morton v. Forsee (1913) 249 Mo. 409, 155 S. W. 765, Ann. Cas. 1914D, 197; Barry v. Whitney (1851) 3 Sandf. (N. Y.) 696; Whitehead v. Kennedy (1877) 69 N. Y. 466. Thus, in Preston v. Nugent (1900) 13 Manitoba L. R. 511, supra, the court said: "By our act, Manitoba Rev. Stat. chap. 83, § 68, 'any attorney at law, solicitor in equity or barrister in this province may contract, either under seal or otherwise, with any person or persons or corporation whatsoever as to the remuneration to be paid him for services rendered or to be rendered to the said person, persons or corporation, in lieu of or in addition to the costs which by any tariff in force are allowed to the said attorney or solicitor, and the contract entered into may provide that such attorney or solicitor is to receive a portion of the proceeds of the subject-matter of the action or suit in which any such attorney or solicitor is or is to be employed, or a portion of the moneys or property for which such solicitor or attorney may be retained, whether an action or suit has been brought for the same or a defense has been entered, and such remuneration may also be in the way of commission or percentage on the amount recovered or defended or on the value of the property about which any action, suit, or transaction is concerned.' Now, while this statute contains no express provisions, as in the cases of the enactments in England and in the province of Ontario on similar subjects, for inquiring into the fairness or reasonableness of such an agreement and for setting it aside, I cannot consider that the court is precluded from exercising the ordinary jurisdiction of a court of equity to determine its validity upon equitable principles. But in dealing with such a contract it must be remembered that the statute authorizes an agreement of this kind between solicitor and

If the contract made between the attorney and client after the confidential relationship has commenced, is suspicious, oppressive, or fraudulent, it will be construed as invalid, and no recovery can be had thereon. Alabama.-Ware v. Russell (1881) 70 Ala. 174, 45 Am. Rep. 82; Yonge v. Hooper (1882) 73 Ala. 119. See also Dickinson v. Bradford (1877) 59 Ala. 581, 31 Am. Rep. 23.

Illinois.-Elmore v. Johnson (1892) 143 Ill. 513, 21 L.R.A. 366, 36 Am. St. Rep. 401, 32 N. E. 413; Robinson v. Sharp (1903) 201 Ill. 86, 66 N. E. 299.

ence, are regarded with a scrutinizing and jealous eye by courts of equity, and will be set aside and the clients protected whenever advantage has been taken of them through the influence or knowledge of the attorneys, possessed by reason of their peculiar relations."

Thus, where it appeared that in a prosecution for murder the attorney for the prisoner was rejected by the court, which compelled the prisoner to engage new attorneys, and after the engagement he was persuaded to make an agreement with the new attorneys for their services which he would not have made but for that persuasion, it was held that the client would be relieved from the excess above a fair compensation for the services rendered by the attorneys. Downing v. Major (Ky.) supra. See to the same effect, Shirk v. Neible (Ind.) supra.

Likewise, where the plaintiff employed an attorney to defend him at a preliminary trial of a criminal charge preferred against him, and paid him for such services, but subsequently, and while the relation of attorney and client existed, made a contract for further services in the same case, it was held that the contract was void where the attorney failed to advise the client of his rights in relation to contracting with one already his attorney. RITZ v. CARPENTER (reported herewith) ante, 840.

So, where it appeared that, after the inception of the relation of attorney and client, a contract was made, giving the attorney one half of the proceeds of life insurance policies for collecting them, which contract was procured by the unwarranted representations of the attorney, it was held that the contract was properly set aside as fraudulent and void. Robinson v. Sharp (Ill.) supra.

Where an attorney takes security for his compensation from his client after the inception of the relationship, it will not be enforced by a court of equity, in favor of the attorney, for anything in excess of what is justly due. Porter V. Bergen (1896) 54 N. J. Eq. 405, 34 Atl. 1067. See to the same effect, Yonge v. Hoop

er (1882) 73 Ala. 119; Keenan v. Scott (1908) 64 W. Va. 137, 61 S. E. 806.

In Elmore v. Johnson (1892) 143 Ill. 513, 21 L.R.A. 366, 36 Am. St. Rep. 401, 32 N. E. 413, the court laid down the following rule with regard to contracts for compensation between attorney and client, affecting the property involved in litigation, viz.: "Where the title to property is so involved in litigation that the value of the property depends upon the decision as to such title, a contract made during the pendency of the litigation to compensate the attorney for his legal services with a part of the property involved therein, should be held to be voidable at the election of the client, irrespective of the fairness or unfairness of the contract, provided such election is exercised within a reasonable time. Such a rule as this is demanded by public policy and in the interests of a wholesome administration of justice."

In Filon's Estate (1897) 7 Pa. Dist. R. 316, it was held that while an agree-⚫ ment between an attorney and his client for a contingent fee is not per se illegal, if the agreement for the payment of such a fee is entered into after the relation of attorney and client has been established, it may be avoided by the latter irrespective of any actual fraud, the well-settled rule of equity being that under such circumstances the attorney shall not be permitted to derive any benefit from the contracts, bounty, or negotiationa of the client.

Likewise the rule has been stated that a contract for compensation between an attorney and his client, entered into during the existence of the fiduciary relation will be disregarded, if made without a fair and full disclosure of the facts on which it is predicated. Donaldson v. Eaton (1907) 136 Iowa, 650, 14 L.R.A. (N.S.) 1168, 125 Am. St. Rep. 275, 114 N. W. 19; Burnham v. Heselton (1890) 82 Me. 495, 9 L.R.A. 90, 20 Atl. 80.

Such contracts are voidable only at the election of the client, and if he acquiesces, strangers to the contract have no right or cause to complain.

Ware v. Russell (1881) 70 Ala. 174, 45 Am. Rep. 82.

c. Presumption and burden of proof as to validity.

There is a presumption of unfairness or invalidity attaching to a contract for compensation executed by an attorney and his client after the establishment of the fiduciary rela

tion.

Alabama.-White v. Tolliver (1895) 110 Ala. 300, 20 So. 97. See also Kidd v. Williams (1901) 132 Ala. 140, 56 L.R.A. 879, 31 So. 458.

California.-Cooley v. Miller & Lux (1909) 156 Cal. 510, 105 Pac. 981.

Illinois.-Elmore v. Johnson (1892) 143 Ill. 513, 21 L.R.A. 366, 36 Am. St. Rep. 401, 32 N. E. 413.

Indiana. French v. Cunningham (1898) 149 Ind. 632, 49 N. E. 797; Shirk v. Neible (1900) 156 Ind. 66, 83 Am. St. Rep. 150, 53 N. E. 281.

Iowa.-Bolton v. Daily (1878) 48 Iowa, 348; Shropshire v. Ryan (1900) 111 Iowa, 677, 82 N. W. 1035.

Nevada. MOORE V. ROCHESTER WEAVING MIN. Co. (reported herewith) ante, 830.

New York.-Brotherson v. Consalus (1863) 26 How. Pr. 213; Mason v. Ring (1861) 3 Abb. App. Dec. 210, 2 Abb. Pr. N. S. 322; Brock v. Barnes (1863) 40 Barb. 521. See also Anonymous (1856) 16 Abb. Pr. 428.

Ohio.-Carlton v. Dustin (1883) 9 Ohio Dec. Reprint, 51.

South Dakota.-Egan v. Burnight (1914) 34 S. D. 473, 149 N. W. 176, Ann. Cas. 1917A, 539.

Thomas

Virginia. V. Turner (1890) 87 Va. 1, 12 S. E. 149, 668. West Virginia. Keenan v. Scott (1908) 64 W. Va. 137, 61 S. E. 806; Vance v. Ellison (1915) 76 W. Va. 592, 85 S. E. 776. See also Dorr v. Camden (1904) 55 W. Va. 226, 65 L.R.A. 348, 46 S. E. 1014.

It follows, therefore, that the burden of showing that a contract for compensation, executed by an attorney and his client during the existence of the fiduciary relation, is fair

and reasonable, and free from undue influence, rests on the attorney.

United States. Ridge v. Healy (1918) 164 C. C. A. 32, 251 Fed. 798. Alabama. Dickinson v. Bradford (1877) 59 Ala. 581, 31 Am. Rep. 23; Yonge v. Hooper (1882) 73 Ala. 119; Kidd v. Williams (1901) 132 Ala. 140, 56 L.R.A. 879, 31 So. 458.

Illinois.-Elmore v. Johnson (1892) 143 Ill. 513, 21 L.R.A. 366, 36 Am. St. Rep. 401, 32 N. E. 413; Dyrenforth v. Palmer Pneumatic Tire Co. (1909) 240 II. 25, 88 N. E. 290.

Indiana. French v. Cunningham (1898) 149 Ind. 632, 49 N. E. 797; Shirk v. Neible (1901) 156 Ind. 66, 83 Am. St. Rep. 150, 59 N. E. 281.

Iowa. Shropshire v. Ryan (1900) 111 Iowa, 677, 82 N. W. 1035; Donaldson v. Eaton (1907) 136 Iowa, 650, 14 L.R.A. (N.S.) 1168, 125 Am. St. Rep. 275, 114 N. W. 19.

Maryland.

Merryman v. Euler (1883) 59 Md. 588, 43 Am. Rep. 564. Michigan. Boyle v. Waters (1919) 206 Mich. 515, 173 N. W. 519.

Missouri.-Morton v. Forsee (1913) 249 Mo. 409, Ann. Cas. 1914D, 197, 155 S. W. 765 (with dissenting opinion). Compare Beagles v. Robertson (1909) 135 Mo. App. 306, 115 S. W. 1042.

New Jersey. Porter v. Bergen (1896) 54 N. J. Eq. 405, 34 Atl. 1067.

New York.-Haight v. Moore (1874) 5 Jones & S. 161; Brock v. Barnes (1863) 40 Barb. 521; De Rose v. Fay (1842) 4 Edw. Ch. 40; Boyd v. Daily (1903) 85 App. Div. 581, 83 N. Y. Supp. 539, affirmed in (1903) 176 N. Y. 613, 68 N. E. 1114; Goldberg v. Goldstein (1903) 87 App. Div. 516, 84 N. Y. Supp. 782; Whitehead v. Kennedy (1877) 69 N. Y. 462; Re Howell (1915) 215 N. Y. 466, 109 N. E. 572, Ann. Cas. 1917A, 527. Compare Werner v. Knowlton (1905) 107 App. Div. 158, 161, 94 N. Y. Supp. 1054.

South Dakota.-Egan v. Burnight (1914) 34 S. D. 473, 149 N. W. 176, Ann. Cas. 1917A, 539.

Tennessee. Newman v. Davenport (1876) 9 Baxt. 538; McMahan v. Smith (1871) 6 Heisk. 167; Planters'

Bank v. Hornberger (1867) 4 Coldw. 531.

Texas.Laybourne v. Bray (1916) Tex. Civ. App., 190 S. W. 1159; s. c. on subsequent appeal in (1919) Tex. Civ. App. -, 214 S. W. 630. Virginia. Thomas v. Turner (1890) 87 Va. 1, 12 S. E. 149, 668.

West Virginia.-See Keenan v. Scott (1908) 64 W. Va. 137, 61 S. E. 806.

Thus, in Dickinson V. Bradford (1877) 59 Ala. 581, 31 Am. Rep. 23, an action in equity instituted by an attorney to enforce the specific performance of a contract for compensation entered into with a client subsequent to the establishment of the fiduciary relation, the court said: "Standing, as the parties do, in a relation of confidence, which gives the attorney or solicitor an advantage over the client, the burden of proof lies on the attorney or solicitor; and to support the contract made while the relation existed, he must show the fairness of the transaction, and the adequacy of the consideration. principle is thus stated by Judge Story: 'But the burden of establishing its perfect fairness, adequacy, and equity is thrown upon the attorney, upon the general rule that he who bargains in a matter of advantage with a person placing confidence in him is bound to show that a reasonable use has been made of that confidence; a rule applying equally to all persons standing in confidential relations with each other.'"

The

So, in Newman V. Davenport (Tenn.) supra, an action to recover under a contract for legal services rendered to the defendant by the plaintiff's intestate, it appeared that when the alleged contract was made the plaintiff's intestate was and for some time previous had been the defendant's counsel in a matter of importance. The court said: "The question then comes to this, After the relation of attorney and client has been established, can the attorney make another contract with the client for further services and recover upon it, however clearly proven, without showing the nature of the services, how they were rendered, and the

reasonableness of the compensation stipulated for? But this, if an open question anywhere, certainly is not in this state. It is quite well established that in controversies between attorney and client, the law is severely exacting of the former, and applies rules much stricter than those which govern controversies between other parties. The onus is always upon the attorney to show that his contract is just and reasonable, and free from all exorbitancy of demand. He is not permitted to stipulate for a benefit incommensurate with the service to be performed.. But he must

show not only that the services were rendered, but that the compensation stipulated for was reasonable with reference to them."

The rule requiring the attorney to assume the burden of proving his contract with the client to be fair and reasonable and free from undue influence is not affected by a statute recognizing the right of an attorney to regulate his fees by contract, as the object of such a statute is simply to make the fees of an attorney a lawful subject-matter of contract. Morton v. Forsee (1913) 249 Mo. 409, 155 S. W. 765, Ann. Cas. 1914D, 197; Haight v. Moore (1874) 5 Jones & S. (N. Y.) 161; Thomas v. Turner (1890) 87 Va. 1, 12 S. E. 149, 668; Keenan v. Scott (1908) 64 W. Va. 137, 61 S. E. 806. Compare Beagles v. Robertson (1909) 135 Mo. App. 306, 115 S. W. 1042; Werner v. Knowlton (1905) 107 App. Div. 158, 94 N. Y. Supp. 1054. II. Contract for increased compensation.

An agreement made by a client with his counsel after the latter has been employed, by which the original contract is varied and greater compensation is secured to the counsel, is ordinarily invalid.