The sun. [volume] (New York [N.Y.]) 1833-1916, 1906-03-29
NE cLARK DIsaARMENT oAsE.

Arthur E. Clark, an attorney and counsellor
at law, which is OF unusual interest and
Importance not only to the legal profession
but to the general public. The court in an
opinion written by Judge Willard Bartlett.
recently designated by Governor Higgins
for that tribunal from the Appellate Di-
vision, Second Department, and concurred
in by Chief Judge Cullen and Judges O'Brien,
Haight, Vann and Werner, unanimously
afirms a judgment Of the Appellate Dr.
vision, Fourth Department, removing Clark
from office as an attorney and counsellor Mt
law.
The proceeding WINS based upon eleven
specific charges OF misconduct. On the
interpretation of an answer by Clark the
matter was laid before Charles A. Hawley,
who as referee found most of the charges
to be established by adequate proof. The
two main charges against Clark we're
a charge Of champerty. that Is to say, the
fomenting Of litigation and a charge OF
selling out his clients to the other side.
The accusation of ohamperty and the
basis thereof are expressed as follows in
the fifth charge:
That In or about the years 1905 and 1907 the said
Arthur f. Clark entered into certain contracts with
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employed the said Smell to procure persons through
out the State OF New York 70 retain and employ
the said Clark TO commence actions against diner
ent telephone and telegraph corporations, and IN
and by said contracts the said Clark promised and
agreed TO pay said Smell for inducing said persons
TO place such claims In his hands for collection and
for the purpose Of bringing actions thereon; that,
In pursuance Of said contract. the said Smell did
procure persons to the number Of over two
thousand To employ said Clark as attorney as afore-
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sums OF money on account thereof; that said CON
tracts were in violation of Sections ~ and 10 OF the
Code Of Civil Procedure Of the State OF New York.
The material part Of Sections74 and rs OF
the code reads as follows:
An attorney or member at law shall not, by HIM
self, or by or In the name of another person, either
before or after action brought. promise or give,
or procure 10 be promised or given. a valuable
consideration TO any person. as an inducement TO
placing, or In consideration OF having placed, In
his hands. or the hands OF another person. a demand
Of any kind for the purpose OF bringing an action
thereon. " " . An attorney or counsellor who
violates either Of the last two sections Is guilty OF
a mlsdemcanor and on conviction thereof shall be
punished accordingly and must be removed from
once by the Supreme Court.
Clark and SMELL entered into a written
agreement whereunder Clark promised to
pay Smell three and subsequently five dol
lars for every claim he might procure from
property owners against telegraph and
telephone companies on account OF the
erection of poles in the highways upon
which they owned lands, and also on ac-
count Of the mutilation Of a and fruit
trees by the aforesaid corporations. Clark
was to receive from 10 to 80 per cent. from
each Of about two thousand clients, most
of whom were procured by Smell or his
agents. The large majority Of these claims
were settled without suit. There was
practically no dispute as to this statement
Of fact.
Judge Bartlett proceeds with great par
ticularity to trace the doctrine Of cham
perty from the days Of Blackstone to the
present time; he cites many decisions, both
from the latterday English reports as well
as those based on the statutes Of the several
States which define this offence. He Jays:
As construed by the learned Appellate Division.
the agreement between the attorney and the lay
agent whom he employed to procure retainers for
him contemplated the payment OF the agent out
OF the prohts TO be derived by the attorney In the
nrosecution of the claims. . . . The effect of
the decision below is to hold that Section "a . . .
not only prohibits a lawyer from offering or giving
any valuable consideration TO a desired client for
the purpose Of obtaining his claim to bring suit
upon, but also fOrbldS tue lawyer HOm paying VI
agreeing TO pay any layman out OF the prospective
profits of the case for services in inducing a desired
client TO place his claim In the attorneys hands for
enforcement. In behalf of the appellant IL Is con
tended that this construction Is Incorrect and that
the section seeks only TO prohibit the oher or gift
from an attorney TO he person hdrtno the claim
that Is TO say. to the desired client as an induce
ment TO the retainer.
Judge Bartlett is unable to sustain the
appellants contention. This is a melan
choly case" he asserts, resulting in the
destruction of the r gofessional career of an
educated lawyoT, who for many years ap-
pears to have enjoyed an excellent reputa-
tion." The facts and the law, however,
force the Court to the conviction that the
appellant ought not to be allowed to prac-
tise law any longer. Judge Bartlett meets
the plea that soliciting business in order
to preserve a mans rights is a service in
the following straightforward words:
Nor Is there anything In the suggestion that the
employment Of such paid emissaries Is essential
to the protection Of the poor. who else might not
become aware Of their right TO prosecute remedies
in the courts for wrongs which they may have
suffered, The permission which the law now gives
TO attorneys to serve clients FOR a conting ent fee
is sufficiently well known throughout the com
munlty TO enable any one, however limited his
means. 20 secure adequate professional service In
the enforcement OF any meritorious claim In the
courts. II is not necessary for the protection OF
the poor TO sanction the practice. which as applied
to negligence cases under the name of Ambulance
chasing" has brought deserved dlscredit upon
those engaged in Il, and. In any event, II the views
which have been expressed are correct the law de-
nounces the practice as criminal.
Even more serious than the charge Of
stirring up legal strife was the accusation
against Clark, established by the proof,
that Clark had made a secret arrangement
with the corporations to sell out his clients.
After occurring through the aid Of Smell
more than three hundred claims against
the Central Nav York Telephone Com
pany. Clark deliberately made o%vertures
to one of its agents for the quashing of
litigation. He then committed himself to
writing in a letter to the general manager,
wherein he, carefully embodied the condi-
tions under which he would sell out his
clients. In a postscript he added; "0f
course. you understand the necessity of
not showing this letter OF letting the con-
tents be known" The final step in the
negotiations appears in the following letter.
signed both by Clark and by Smell:
Mr.. Smell and myself make you the following
offer In regard TO the settlement OF the claims we
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