Decision no. ... in the matter of fixing reasonable fees for attorneys or agents under the authority of Section 9 of the...

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Material Information

Title:
Decision no. ... in the matter of fixing reasonable fees for attorneys or agents under the authority of Section 9 of the "Settlement of War Claims Act of 1928."
At head of title:
American Commissioner
Physical Description:
v. : ; 23 cm.
Language:
English
Creator:
Mixed Claims Commission, United States and Germany
Publisher:
U.S. G.P.O.
Place of Publication:
Washington, D.C
Publication Date:
Frequency:
completely irregular

Subjects

Subjects / Keywords:
World War, 1914-1918 -- Claims -- Periodicals   ( lcsh )
Claims vs. Germany -- Periodicals -- United States   ( lcsh )
Genre:
serial   ( sobekcm )

Notes

Dates or Sequential Designation:
No. 1 -
General Note:
Title from cover.

Record Information

Source Institution:
University of Florida
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
aleph - 004822591
oclc - 50038280
System ID:
AA00008543:00067

Full Text

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UNIV. OF FL LIB.


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U.S. DEPONTORY


THE AMERICAN COMMISSIONER

MIXED CLAIMS COMMISSION

UNITED STATES AND GERMANY


DECISION NO. 18

IN THE MATTER OF

FLNiG RBEA NABLE FEES FOR ATTORNEYS .9OR
AGENTS UNDER THIE AUTHORITY OF ,SECTION 9 OF
THE SETTLEMENT OF WAR CLAIMS ACT OF 1928"


DOCKET NO. 4412


. Mrs. Hallie Sutton, Earl J. Sutton, S. R. Sutton, Heldie Sutton,
Violet Sutton, Thelma Sutton, and Sadie Gills, Claimants
R. 0. Garrett, Agent

Wm. M. Smith and Win. M. Justis, jr., Attorneys


CHANDLER P. ANDERSON
SAwserican Commissioner


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MIXED CLAIMS COMMISSION, UNITED STATES AND GERMANY

Established in pursuance of the Agreement between the
United States and Germany of August 10, 1922


CHANDLER P. ANDERSON
American Commissioner

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THE AMERICAN COMMISSIONER

MIXED CLAIMS COMMISSION

UNITED STATES AND GERMANY


DECISION NO. 18
IN THE MATTER OF
FIXING REASONABLE FEES FOR ATTORNEYS OR
AGENTS UNDER THE AUTHORITY OF SECTION 9 OF
THE SETTLEMENT OF WAR CLAIMS ACT OF 1928 "


DOCKET NO. 4412


Mrs. Hallie Sutton, Earl J. Sutton., S. R. Sutton., Heldie Sutton,
Violet Sutton, Thelma Sutton, and Sadie Gills, Claimants
R. 0. Garrett, Agent
Win. M. Smith and Win. M. Justis, fJ., Attorneys


All of the above-named claimants have duly filed with the Ameri-
can Commissioner a written request that he fix a reasonable fee to
be paid by them to their attorneys, Wm. M. Smith, of Cumberland,
Virginia, and Wm. M. Justis, jr., of Richmond, Virginia, and all of
the above named claimants, except Mrs. Hallie Sutton, have duly
filed with the American Commissioner a written request that he fix a
reasonable fee to be paid by them to their agent, R. 0. Garrett, of
Cumberland, Virginia, for whatever services have been rendered by
the aforesaid attorneys and agent on behalf of and with the au-
thority of the said claimants, such services being of the character
described in the provisions of Section 9 of the "Settlement of War
Claims Act of 1928."
, 2 -524-28s (125)






126
The claimants have objected to the amount of the fee asked by
the said attorneys and agent, respectively, on the ground that it is "
excessive, and the attorneys and agent have been notified of the
filing by the claimants of their request that a reasonable fee be fixed.
The aforesaid attorneys and agent, in response to a request by the
American Commissioner, .have filed with him several afidavits giving
the information which they desire to have considered by him as
showing the reasonableness of the fee asked by them, Which infor-
mation has been brought to the attention of the claimants, who have
filed affidavits in reply, copies of which have been transmitted to the
attorneys and agent.
The amount of the fee asked by the attorneys as compensation for
their services in this matter is twenty per cent of the amount re-
ceived by all -the claimants in payment of the award made by this
Commission on their behalf.
The amount of the fee asked by the aforesaid agent as compensa-
tion for his services in this matter is twenty-five per cent of the
amount received by all of the claimants, except Mrs. Hallie Sutton,
in payment of the award rendered by this Commission on their :T
behalf. Mr. Garrett has not acted as the agent for Mrs. Sutton and
makes no claim for compensation from her.
This Commission rendered its award on behalf of these claimants
on November 12, 1924. This award was made up of two items, one
of $3,780, on behalf of Mrs. Hallie Sutton, and the other of $15,000,
on behalf of her children, the other claimants above named, with
interest on both of these amounts at the rate of five per cent per
annum from November 1, 1923, to the date of payment. This award
represents damages suffered by the claimants on account of the death
ot Samuel R. Sutton, who was drowned on or about June 18, 191.5,
in consequence of a German submarine attack. Mr. Sutton's wiow ::
and children are the claimants in this case.
The folJowing chronological review of the sequence of events in ,
this case, which are pertinent to the present proceedings, as shown
by the record of this Commission and by the information filed byte '
parties, will tend to clarify a rather confused situation. '
It appears that soon after the leath of Samuel R. Sutton, 'hi.
'brother, William R. Sutton, filed with the Department of State 4.c
notice of claim against the German Government for indemnity 4ft'a
account of the death of his brother. In July, 1919, the Department






127


of State forwarded, for the use of Mr. W. R. Sutton in filing this
elaim, application forms to be filled out by him, which apparently
never was done, and no further action was taken until this Commiis-
sion was organized in 1922. In December of that year, in response
to an inquiry from Mr. R. 0. Garrett on behalf of Mr. W. R. Sutton
for the appropriate forms to be used in preparing this claim, the
Agency of the United States before this Commission wrote to him
on December 2. 1922, advising him that no particular form has
been prescribed in the matter of the preparation of claims to be pre-
sented to the Mixed Claims Commission, United States and Germany.
Any claim of the character indicated which Mr. Sutton desires to
submit should be prepared in the form of a. simple petition executed
under oath in duplicate, and filed on or before January 1, 1923, with
the Department of State, which will transmit it promptly to the
office of the American Agent." With this letter was inclosed a copy
of the circular letter issued by the Department of State giving in-
formation and instruction regarding the preparation of claims. In
response to this communication, an affidavit conforming to the in-
structions received from the Agency, which affidavit Mr. Garrett
states was prepared by him. was sworn to by Mr. Sutton on Decem-
ber 23, 1922. and was filed by Mr. Garrett with the Department of
State and duly transmitted to the Agency for submission to this
Commission.
Although this claim at the outset was filed in the name of W. R.
Sutton. it was soon thereafter recognized and treated by him and by
this Commission as a claim duly filed on behalf of the children of
the deceased, and the award by the Commission was made on that
basis.
Mr. W. R. Sutton made it clear throughout that he himself did not
expect any part of the indemnity claimed, and that this claim was
solely for the benefit of his brother's children. He did not file, or
authorize the filing of, any claim on behalf of his brother's widow,
who had divorced his brother some years before his death.
Mr. R. 0. Garrett was the Clerk of Cumberland County, Virginia,
at the time this claim was prepared and presented through him, but
he was not an attorney at law. The affidavits filed in this proceeding
show a disagreement between Mr. Sutton and Mr. Garrett as to the
basis on which the latter participated in the preparation and pres-
entation of this claim. Mr. Sutton admits, and the records show,






128
that Mr. Garrett assisted him in preparing and presenting the claim,'
and also in procuring and filing evidence in support of it. Mr. Gar-
rett asserts that his services were rendered on the basis that a con. ::
tingent fee was to be paid in case of recovery, but he admits that no
agreement was made as to the amount of compensation to be paid in
that contingency.
The record in this case leaves no doubt about Mr. Garrett's au-
thority to act in the capacity of agent on behalf of the Sutton chil-
dren. It is true that they state in affidavits filed by them in this pro-
ceeding that they never authorized anyone to employ Mr. Garrett
for them in connection with this claim. Nevertheless, they all admit
in these affidavits that they have been "always fully aware of and
entirely familiar with the various steps that have been taken to estab-
lish this claim," and several of them have sworn to affidavits pre-
pared by Mr. Garrett, which were filed by him with other affidavits
prepared by him and sworn to by Mr. W. R. Sutton in support of 4
this claim.
Even if the Sutton children are justified in their statement that
Mr. Garrett was not employed by them in connection with this claim,
it follows from the circumstances of this case that all of the claim-
ants, with the exception of Mrs. Sutton, for whom Mr. Garrett never
rendered any services, have sanctioned his efforts on their behalf,
because, knowing that he was acting as their agent and with full
knowledge of what'he was doing, they have acquiesced therein and
accepted the benefits arising therefrom.
On the question of whether Mr. Garrett was justified in expecting
that he would receive reasonable compensation for his services if they
proved to be successful, the American Commissioner finds that the
services rendered by him were much more extensive and important i
than mere voluntary accommodations for family friends. He un-
doubtedly expected to receive compensation for his services, and he .
states in his affidavit that his services were rendered on the under-
standing that he would be compensated out of the proceeds of the
claim on a contingent basis. Moreover, it appears from an affidavit
filed on behalf of the children in this proceeding that some of them
said to him, when he presented his*claim for compensation, that "if
the Commissioner was of the opinion that he was entitled to any-
thing they wanted him to have his part," and several of them also
state that they desire that a proper compensation be paid to the 1.






129


attorneys that earned the same, as the Commission of the Mixed
Claims may see fit to allow."
The wishes thus expressed are confirmed on behalf of all of these
claimants by the attorney who appears for them in this proceeding.
He has stated in a letter written on their behalf to the American
Commissioner that all of. them are willing, even anxious, to pay
whatever fee the Commissioner decides is proper, to whomever it
properly belongs, as soon as they may be definitely advised." He,
accordingly, requests that the Commissioner in addition to fixing the
amount of the fee to be paid, also decide to whom, and in what pro-
portion it should be paid."
The American Commissioner is of the opinion, on the facts dis-
closed by this record, that Mr. Garrett is entitled to compensation for
the services rendered by him as the agent of these claimants, and it
only remains, therefore, to determine what is a reasonable fee to be
paid to him for such services. Mr. Garrett proposes a fee of twenty-
five per cent of the amount recovered. The claimants consider this
excessive, but, as above stated, leave it to the American Commissioner
to determine what is a reasonable fee to be paid to him in the
circumstances.
It appears from the records of this Commission, that, as above
stated, the original petition in this claim was prepared and filed by
Mr. Garrett and that the Agency addressed to him all of its corre-
spondence with reference to the evidence required to establish the
children's right of recovery and the amount of damages suffered by
them on account of their father's death, and that all of the evidence
in support of their claim, which was filed with the Commission, was
furnished through Mr. Garrett and, so far as the record shows, was
procured as the result of his efforts.
In June, 1924, Mr. Garrett's active participation in the presentation
of this claim ceased, for reasons which are not pertinent here, but, as
. stated above, no further evidence was thereafter filed in support of
the claim on behalf of.the children, and the award finally made in
their claim was .based on the evidence which had been filed by Mr.
Garrett up to that time, showing the American nationality of these
claims, the dependence of the claimants upon the deceased, and, so
far as possible, the amount contributed by him to their support.
Thereafter, in October, 1924, the Sutton children employed the
attorneys Wm. M. Smith and Win. M. Justis, jr., to act on their






130
behalf, and agreed to pay them a contingent fee of forty per cent. 1
any amount recovered. Subsequently these attorneys voluntarily
reduced the fee fixed by this agreement from forty per cent to twenty i
per cent of the recovery, and this is the fee now asked by them. Mrs. m l3
Hallie Sutton also employed these attorneys to act for her, and agreed 4
to pay them a contingent fee of twenty per cent of any amount re-
covered, which is the fee now asked by them. :1
As to the services rendered by the attorneys Smith and Justis, it
appears that in October, 1924, they made two trips to Washington, |
the first one for a conference with the American Agency and the i
second one for a further conference with the American Agency, alt J
which the German Agent was also present. The records of this Comrn- *
mission show that at these conferences they found that no further
proof was required in support of this claim, and that the German .
Agent was prepared to make, and did make, an offer to agree to an
award based on the proof filed by Mr. Garrett. This offer was ac- -,
ceptable to the claimants, and the award finally entered was for the 3N
amount thus offered. In making this settlement and entering the
award no change was made in the form of the claim on behalf of the :3
children as filed by Mr. Garrett.
The only additional services rendered by the new attorneys, which
come within the scope of the services defined in the Act under which -
this proceeding is taken, were the making of several trips by Mr. |
Wm. M. Smith to Richmond, Va., in connection with having the
Treasury forms for the payment of this award properly filled out by
the claimants, and supplying certain information desired by the
Treasury Department as a preliminary to paying the award, and also
the appointment of Mrs. Sutton as the guardian of two of the minor
children interested in this claim, in which proceeding Mr. Wm. M.
Smith became her surety on her official bond as guardian.
This appointment of Mrs. Sutton as guardian was made in orderi':
that the award on behalf of her minor children could be paid to
her, but, on account of the lapse of time before the award was ready i
for payment, one of these minor children had already become of agi,
and it was accordingly necessary to have Mrs. Sutton's guardianship"1
of that child cancelled.
As to the services rendered by these attorneys for Mrs. Hallie Sut-'":
ton, on whose behalf no services were rendered by Mr. Garrett, it
appears that, on their above-mentioned trips to Washington, tLCyheM;
i, )H...






131
took up with the American Agency the question of securing an ward
for Mrs. Sutton, on whose behalf no claim had up to that time been
filed. The basis of her claim as presented by them was that as the
divorced wife of the deceased, S. R. Sutton, she had been receiving,
under the divorce decree, alimony from him, the payment of .which
ceased upon his death, and that she had accordingly suffered damages
by his death to the extent of the loss of this contribution. The
American Agency took this question up with the German Agent, and
through his courtesy, although the time to file new claims had
expired, this claim on behalf of Mrs. Sutton was accepted as part
of the original claim. Accordingly, in making his above-mentioned
settlement offer the German Agent included in it an amount equiva-
lent to the present value of the deceased's alimony contributions to
Mrs. Sutton, capitalized on the basis of his life expectancy at the rate
of interest which had been adopted by the Commission in such cases.
These attorneys accepted this offer for Mrs. Sutton, and the award
finally rendered on her behalf was for the amount thus offered. No
other services were rendered by these attorneys on behalf of Mrs.
Sutton except such incidental assistance as they may have rendered
her in filling out the Treasury Department application form for the
payment of the award, which was more in the nature of a clerical
ptccommodation than a legal service.
In these proceedings both Mrs. Sutton and her children take the
position that their written agreements fixing the attorneys' fees were
made in reliance upon the representation by these attorneys that they
would be put to great expense and trouble in bringing these claims
to a conclusion, which representation was not justified as subsequent
developments have shown.
This case falls within the class referred to in the following extract
from the .general Administrative and Jurisdictional Decision of thke
American Commissioner, dated September 28, 1928:
Is these cases, as well as in many others, the claimants, and probably the
attorneys also, were not well informed as to the scope and character of the
service to be rendered, and their agreements were based upon expectations and
assumed conditions which did not develop as anticipated, and which perhaps
contemplated a greater or less amount, or a different character, of work or
[ responsibility for the attorneys than was actually required or performed.
In this case the prosecution of the children's claim was much fur-
ther advanced towards a conclusion than either the .claimants or the






132

attorneys seem to have appreciated when their agreement about fees ::
was made. As shown above, the only important thing to be done il
that time was to confer with the American Agency and to transmit
to the claimants, and accept on their behalf, the offer of settlement
which resulted from a discussion between the American Agency and '
the German Agent after the first conference between these attorneys :E
and the American Agency. This offer was purely a voluntary act
on the part of the German Agent, and was not the result of any
argument on the law, or of any evidence submitted by these attorneys.
So far as the claim of the children was concerned, they submitted no
new evidence, and they were not at any time called upon to deal in
this case with any issue of law or fact. On the other hand, so far
as Mrs. Sutton's claim is concerned, they are undoubtedly entitled to
special credit for urging that it should be included in the award.
Except for their efforts no award on her behalf would have been
made.
It is also true as to the services of Mr. Garrett as agent that they :
did not involve a discussion of any question of law or issues of fact,
and they consisted very largely in producing evidence in response
to specific requests by the American Agency. Such services are
more of a clerical than a legal character, but the record shows that
except for his intervention this claim on behalf of the children of
S. R. Sutton probably would not have been presented at all.
In considering the value of the services rendered by the agent and
the attorneys in this case, it must also be noted that no claim is made
by them for disbursements or expenses, all of which are expressly
stated to be included in the fee fixed for services rendered.
Now, therefore, in the circumstances above set forth, and con-
sidering the character and extent and value of the services rendered
by the said agent and by the said attorneys, and that the payment
of their compensation was contingent upon an award being made and
paid, and that the fee to be paid to them, respectively, includes all
disbursements and expenses incurred by them, and in view of the
considerations stated in the general Jurisdictional and Administra-
tive Decision rendered by the American Commissioner under date of
September 28, 1928, and after careful examination and full considera-
tion of the information furnished in this proceeding by the attorneys
and the agent and the claimants, and by the records of this Com-






133
mission pertinent to the questions involved, and after due delibera-
tion thereon, and it appearing that the award made by this Commis-
sion on behalf of each of these claimants has now been paid,
The American Commissioner decides and fixes as the reasonable fee
to be paid to their agent, R. 0. Garrett, by each of the claimants,
Earl J. Sutton, S. R. Sutton, Heldie Sutton, Violet Sutton, Thelma
Sutton, and Sadie Gills, the parties to this proceeding, the sum of
three hundred and fifty dollars ($350), amounting in all to twenty-
one hundred dollars ($2,100), and as the reasonable fee to be paid
by each of the above named claimants to each of the said attorneys,
Wm. M. Smith and Wm. M. Justis, jr., the sum of twenty dollars
($20.00), amounting in all to two hundred and forty dollars ($240),
and the American Commissioner further decides and fixes as the
reasonable fee to be paid by the claimant, Mrs. Hallie Sutton, to each
of her attorneys, Wm. M. Smith and Wm. M. Justis, jr., the sum of
four hundred dollars ($400), amounting in all to eight hundred
dollars ($800), the said fees to be paid by the claimants, and received
by the attorneys and agent as full compensation for all services
rendered by them in the prosecution and collection of these claims,
as defined in Section 9 of the "Settlement of War Claims Act of
1928."
Done at Washington, D. C., this 13th day of December, 1928.
CHANDLER P. ANDERSON,
American Commissioner,
Mixed Claims Commission,
United States and Germany.

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