Baca v. Padilla.

• Decision Date: 09 June 1920
• Docket Number: No. 2373.,2373.
• Citation: 26 N.M. 223,190 P. 730
• Parties: BACAv.PADILLA.
• Court: New Mexico Supreme Court

26 N.M. 223

190 P. 730

BACA

v.PADILLA.

No. 2373.

Supreme Court of New Mexico.

June 9, 1920.

Syllabus by the Court.

Section 1860, Code 1915, by implication authorizes the appearance of private counsel on behalf of the state in criminal proceedings “on order of the court, with the consent of the district attorney or Attorney General.”

Contracts by attorneys at law for contingent fees are generally upheld by the courts, but a contract by an attorney at law to assist in the prosecution of a criminal case for a contingent fee, dependent upon the conviction of the accused, is contrary to public policy.

Where an attorney at law enters into a contract with another to assist in the prosecution of a criminal case for a contingent fee, the contract is void and there can be no recovery on the contract, but such a contract is not inherently malum in se or malum prohibitum, and the attorney may recover the reasonable value of his services on a quantum meruit.

When the illegality, either in whole or in part, is in the thing which the party seeking to recover was to do, then there can be no recovery upon a quantum meruit, but where the illegality was not in what the plaintiff was to do but in the manner in which he was to be compensated for doing the legal thing, then he can recover upon a quantum meruit for the reasonable value of his services.

Appeal from District Court, Socorro County; M. C. Mechem, Judge.

Action by Elfego Baca against Zacarias Padilla. Judgment for plaintiff, and defendant appeals. Affirmed.

Section 1860, Code 1915, by implication authorizes the appearance of private counsel on behalf of the state in criminal proceedings “on order of the court, with the consent of the district attorney or Attorney General.”

Neill B. Field, of Albuquerque, for appellant.

M. C. Spicer, of Socorro, for appellee.

ROBERTS, J.

Appellee brought this suit to recover the sum of $5,000, alleged to be due on a contract to perform professional services as an attorney at law for the appellant, at his request, in the prosecution of a certain criminal case pending in Valencia county, N. M., for which services it was alleged the appellant agreed to pay appellee a reasonable fee. Appellant filed a general denial and also pleaded payment and the statute of limitations. The case was tried to the court, and after the evidence was heard the court made a general finding that plaintiff was entitled to recover the sum of $500. Appellant submitted a finding of fact which, in so far as material, found that appellee accepted employment on the following terms, i. e., if the parties he was to prosecute were acquitted he should be paid a reasonable fee, and if convicted he should receive a “big fee,” and that in pursuance to such agreement appellee prosecuted the said action and obtained a verdict of guilty against the defendants therein. Appellant asked the court to conclude, as a matter of law, from the foregoing facts specially found, that the contract made and entered into between the appellant and appellee was and is contrary to public policy and void. The conclusion of law was refused, and judgment was entered in favor of appellee in the sum of $500.

[1] The controlling question in this case is as to whether or not an attorney at law can enter into a valid contract with a client to assist in the prosecution of a criminal case upon a contingent fee. Appellant argues that it is contrary to the public policy of this state for a private prosecutor to appear in a criminal case. Section 1860, Code 1915, by implication authorizes the appearance of private counsel on behalf of the state in criminal proceedings “on order of the court, with the consent of the district attorney or Attorney General.” And in the case of State v. Lucero, 20 N. M. 55, 146 Pac. 407, the right of such private counsel to appear was recognized by this court. This question then may be laid aside and attention directed to a consideration of the question which disposes of this case.

[2] Contracts for contingent fees by attorneys at law were not tolerated at all at common law, but in most of the states such contracts are allowed and their validity sustained; this principally upon two grounds: First, that of necessity; the argument being that otherwise many poor suitors with meritorious causes of action would be denied access to the courts because too poverty-stricken to pay counsel; that instead of perverting justice the allowance of such fees is the means of securing the same. The second ground is that at common law the practice of law was followed because of the honor it bestowed upon the lawyer, and not for profit or as a means of livelihood; possibly a false assumption, but nevertheless always religiously adhered to in the profession. In this country the sham has been cast aside, and the courts universally recognize that, while the profession of the law is most honorable, a man who follows the profession must be able to earn a living, and while jealously guarding the relations between attorney and client, and never hesitating to enforce fair dealing on the part of the attorney toward the client, any contract between the attorney and client for the attorney's compensation for legal services, so long as the same is fair, reasonable, and valid, will be enforced.

Many cases will be found cited in the note to section 421, Thornton on Attorneys at Law, upholding the validity of contracts for contingent fees generally. We do not believe any case will be found which upholds the validity of a contingent fee beyond the rule of necessity, that is to say, the courts will not uphold such contracts where provisions may be made for the prosecution of the suit by the court in other ways. The most familiar illustration is that offered by suits for divorce and alimony. Contracts have been made by attorneys to prosecute such suits for a designated portion of the alimony recovered, and all such contracts, so far as we are aware, have been declared invalid upon one ground or the other, i. e.: (1) That there was no necessity for permitting such contracts, because the court was authorized by law to require the husband to pay suit money, thus enabling the wife to prosecute her action; (2) that it is the policy of the law that reconciliation should be effected between husband and wife, and the attorney, having a great interest in the amount of alimony recovered, which depended, of course,...