In re Herman

• Decision Date: 30 April 1892
• Citation: 50 F. 517
• Court: United States District Court, District of Washington
• Parties: In re HERMAN.

50 F. 517

In re HERMAN.

United States District Court, D. Washington, Eastern Division.

April 30, 1892

F. T Post, for petitioner.

H. M Herman, in pro. per.

HANFORD District Judge.

The petitioner, Herman L. Chase, as receiver of the Spokane National Bank, is the plaintiff in a number of actions commenced in this court for the collection of moneys due to said bank, in all of which cases Henry M. Herman appears as the attorney of record for said plaintiff. The court is now asked to exclude him from further appearing in said cases and to substitute F. T. Post as the attorney for the plaintiff, and also to require said Herman to surrender to the petitioner all the notes and securities and money which he has obtained possession of by means of his position as an attorney of this court assuming to represent the plaintiff in said cases. In his petition the receiver alleges that Herman has not been employed by him, and that he does not desire said attorney to represent him, and sets forth a telegram from Hon. E. S. Lacey, comptroller of the currency of the United States, saying that he (the comptroller) is not willing to recognize Herman as an attorney for the receiver and that he has not been employed by the comptroller's authority. As an explanation of the situation, the petition states that Hon. P. H. Winston has been attorney for the receiver in all matters connected with the business of the bank, and that, as he 'verily believes, said Herman was employed by said Winston to assist him in some of said litigation. ' It is not pretended that Judge Herman has been paid for his services in the cases referred to, or that payment has been tendered; and the directions in said telegram from the comptroller, as well as the attitude of the petitioner in this proceeding, evince an intention to contest his right to receive any compensation. It is proposed to deposit in court such reasonable sum as the court may require to cover his claim, and then to frame issues to be thereafter tried for the purpose of testing his right to receive compensation for the services rendered. From the records in the several cases enumerated in the petition I find that in all of them Judge Herman has from the beginning appeared as the only attorney for the plaintiff. In each case there is a complaint signed by him as attorney for the plaintiff, and verified by Mr. Chase. Some of these cases were commenced in the month of May of last year, and the others were commenced in August and September. The list includes 34 cases, and in 25 of them final judgments in favor of the plaintiff were rendered before this proceeding was commenced; one was settled and dismissed, and the other eight are now pending. The receiver shows by his testimony given upon this hearing that he has received the fruits of Judge Herman's labor in these cases. In some of those pending, as well as in several which have proceeded to judgment, payments have been made to him by the respective defendants.

Consideration for the rights of the parties whose interests are represented by this receiver requires me to hold that in all pending cases in which further proceedings or some further action of the court may be necessary, the receiver has the right to dismiss his attorney at pleasure after payment of lawful charges for services rendered, and to employ a new attorney to conduct such further proceedings without assigning any reason for his action; and I hold that whether Judge Herman was or was not regularly employed as the attorney for the receiver, he can be excluded from further appearing in the several cases mentioned which are unfinished, including those in which judgments have been rendered which have not been satisfied, upon payment being made to him for his services, or security given therefor. But as to the cases which are entirely finished, or in which nothing remains to be done except to settle the question at issue between him and the receiver as to his compensation, there is no reason for the further appearance of an attorney, and as to those cases the order for the substitution of attorneys prayed for by the petition will be denied.

In deciding whether to grant or deny the prayer of the petitioner as to pending cases, it is necessary for me to pass upon the question whether security for compensation to Judge Herman for his services as an attorney in said cases by a deposit in the registry of the court, as suggested in the telegram from the comptroller, ought to be exacted. As to this question I hold that, if the attorney is entitled to compensation, he is also entitled to have his right thereto fully protected by the court before he can be by a compulsory order divested of authority to control the conduct of the cases in which compensation has been earned. Judge Herman is an attorney of this court in good standing. He is well known throughout the United States as an eminent lawyer and as a writer of law text-books. It is not alleged as a reason for dismissing him that he is incompetent or dishonest, or that he has been guilty of...