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

UNIV. OF FL LIU.




U.S. DEPOSTORY
i I



THE AMERICAN COMMISSIONER

MIXED CLAIMS COMMISSION

UNITED STATES AND GERMANY


DECISION NO. 28

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. 4065


Nora Connelly McCabe, Andrew Conn.elly, and Francis A. Connelly,
Claimants

Walradt & Blaney, Attorneys


CHANDLER P. ANDERSON,
A merican. Commissioner



;-.S. UOVERN M ENT PRI*.FFICE: 1929

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T IIXED 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
(I)













THE AMERICAN COMMISSIONER

MIXED CLAIMS COMMISSION

UNITED STATES AND GERMANY


DECISION NO. 28
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. 4065


Nora Connelly McCabe, Andrew ('onnelly, aknd Francis A. Connelly,
Claimnants
Walradt & Bla.ney, Attorneys


The above named claimants have duly filed with the American
Commissioner written requests that he fix a reasonable fee to be
paid by them to their attorneys, Walradt & Blaney, of New York
City, N. Y., as compensation for whatever services have been ren-
dered by them on behalf of and with the authority of the said claim-
ants, such services being of the character described in the provi-
sions of Section 9 of the "Settlement of War Claims Act of 1928."
The claimants have objected to the amount of the fee asked by the
attorneys on the ground-that it is excessive, and the attorneys have
been duly notified bf the filing by the claimants of their requests that
a reasonable fee be fixed. The attorneys have filed with the Ameri-
can Commissioner an affidavit and a letter giving the information
which they desire to have considered by the Commissioner as show-
ing the reasonableness of the fee asked, which information has been
37876B-29 (189)






190 A

brought to the attention of the claimants, whose mother has filed on
their behalf an affidavit and a letter in reply, copies of which have
been transmitted to the attorneys.
This claim was for damages resulting from the death of Owen
Connelly, a British subject who was a fireman or trimmer on board
the Lusitania and was drowned when she was sunk in May, 1915,
by a German submarine. The claim as presented was on behalf of
seven surviving sons and daughters of the deceased, all of whom were
American citizens by birth, and the youngest three of whom were
minors and wholly dependent upon their father for support.
In this case an award was rendered by this Commission on March 1
5, 1925, on behalf of the three minor children, as follows: $1,000 to "
Nora Connelly, subsequently Mrs. Nora Connelly McCabe and now
of full legal age; $1,000 to Andrew Connelly, now of full legal age;
and $1,500 to Francis A. Connelly, whose mother, Mrs. Delia Con-
nelly, is now his legal guardian, with interest on each of the above
amounts at the rate of five per cent per annum from November 1,
1923, to the date of payment.
The attorneys allege in their affidavit, which was signed and sworn
to by Mr. Charles P. Blaney, that no date and terms of authoriza-
tion for services and copy thereof, or of service agreement and copy
thereof in writing can be given," but they ask that twenty-five per
cent of the amount of the moneys actually paid to the claimants be
allowed as a reasonable fee for services, in addition to the expenses
incurred by them which they claim amount to $42.67, divided as fol-
lows: $36.44 on account jointly of the claim of the three claimants
receiving awards, and $6.23 on account of the claimant Francis Con-
nelly individually.
It appears from the records of this Commission and from the in-
formation filed by the claimants' mother on behalf of the claimants ,
and by these attorneys that she at first placed this claim in the hands
of a Mr. John 0. Delamater, her employer and a lawyer who had
office space in the office of these attorneys; that thereafter between J
December 30, 1918, and July 22; 1919, Mr. Delamater wrote four let-
ters to the State Department inquiring about the presentation of a
claim on behalf of the widow, who like her husband was a British
subject, but no claim was formally filed by him on behalf of her or
on behalf of these claimants; that during the year 1922 Mr. Delam-.


ii






191


ater died; that Mr. Delamater, who had retired from active practice
some time before his death, turned all of his business over to these
attorneys; that sometime prior to October 24, 1923, Mrs. Connelly
called upon Mr. Blaney and employed his firm to prosecute and col-
lect this claim for her and her children and, according to the claim-
ant, "in view of the fact that my three children, Andrew P. Con-
nelly, Nora Connelly McCabe and Francis A. Connelly were minors,
it was agreed that. I should act for them in filing the claim."
Because of the fact that both the widow and the deceased were
British subjects at the time of his death, Mr. Blaney alleges that
"the claim, at the time it was brought to deponent, appeared to be
almost hopeless, and deponent so reminded said Delia Connelly at
said time. He, however, then told her that in view of the fact. that
the children were born in the United States and were American
citizens, it might be possible to recover if the matter were
taken up with the Mixed Claims Commission." He further alleges
that he "knew at. the time Mrs. Delia Connelly came to him to
consult with him with reference to this case, that she was probably
in no financial condition to pay deponent a retainer, and that claims
for people in the circumstances in which Mrs. Connelly and her
family appeared to be, must from force of circumstances, be taken
on a contingent, basis. Nothing, therefore, was said to Mrs. Con-
nelly at, the time she, individually and as agent for her family, con-
'ferred with deponent as to what the charge for services would be,
and it was not until about the time when the award was actually
paid that any serious consideration of the matter was entered into
between deponent and client"; and that whatever is received by
deponent's firm for services must be shared on account of Mr. Dela-
mater's services hereinbefore set forth and his joint contingent in-
terest herein with the Executor of Mr. Delamater's estate, whose
attorney has left the matter of said estate's interest herein entirely
in deponent's hands for adjustment with the claimants."
It appears from the situation thus disclosed that in fixing the fee
to be paid to thesis attorneys it is necessary to take into consideration
not only the services rendered by these attorneys but also the serv-
ices rendered by their predecessor, Mr. Delamater, in so far as they
were rendered for the benefit of the claimants, on whose behalf an
award has been made by this Commission, and it further appears






192
that the fee in this case is to be fixed on the basis of a contingent .
fee, payable only if and when an award was made and paid on behalf
of these claimants.
Deponent states in his affidavit, after setting out the names and
ages of the deceased's children, that "the total number of claimants,
therefore, at the commencement of said proceedings, represented by
deponent's firm, were these seven children, Delia Connelly individ-
ually and the Estate of Owen Connelly, for which deponent was
prepared to have an administrator appointed, if same were
necessary."
Any services rendered by the attorneys on behalf of the widow or
the estate of the deceased were a pure waste of time, because neither
the widow nor the deceased were American citizens at the time of
his death, and the State Department had distinctly stated in its
correspondence with Mr. Delamater that claims on their behalf
would not be espoused by this Government because they were not
claims of American nationality. Inasmuch as no award was re-
covered on behalf of those claimants no charge can now be made by
the attorneys for such services on account of the contingent char-
acter of their service agreement. Nevertheless, for reasons which
will be explained below, the notice given by Mr. Delamater to the
State Department of the circumstances under which the present
claim arose enured to the benefit of the claimants on whose behalf
the award was made, and the giving of that notice, therefore, was a
service for the benefit of those claimants, and can be taken into
consideration in fixing the attorneys' fee in this proceeding.
On October 22, 1923, the attorneys wrote to the Agent of the
United States before this Commission, asking for information as to
the presentation of this claim, but again described it as a claim on
behalf of the widow of the deceased. The Agency promptly re-
jected the claim on the ground of her lack of American nationality,
and also called the attorneys' attention to the fact that the time
fixed for filing claims under the Agreement between the United
States and Germany establishing this Commission had long since 2
expired. The objection to the nationality of the claim was over-
come by substituting the children as claimants instead of the widow,
pursuant to the view adopted by the American Agent "that a claim J
for his death might be appropriately filed with the Commission on


*Ii







193


behalf of such of the decedent's children who are mentioned in the
sworn petition of Mrs. Connelly as may have been Amer-
ican citizens at the time the claim arose and are American citizens at
the present time." The difficulty about the delay in filing the claim
was also overcome by the American Agent without the assistance or
intervention of the attorneys solely on the ground that "the claim
was recorded in the Department of State prior to the expiration of
the time limit, within which claims against Germany might be filed."
The German Agent accordingly consented to the filing of this claim
and its presentation to this Commission on behalf of the children
of the deceased, and the attorneys were so notified by a letter from
the Agency of February 9, 1924, and the claim was thereupon filed
and listed as a claim on behalf of the deceased's children.
The original petition was filed by the attorneys on November 27,
1923, presenting the claim of the widow for compensation on ac-
count of her husband's death, and, although it mentioned the children
as interested in the claim, it furnished no information as to their
dependency upon their father for support, which, under the theory
adopted by the Agency, was the basis upon which they were re-
quired to present their claim. It accordingly became necessary for
the attorneys to supply additional information in support of this new
claim, and a letter of instructions was addressed to them by the
American Agent on June 6, 1924, calling for the immediate prepara-
tion of a statement setting forth the facts and circumstances giving
rise to the claim. The instructions in this letter as to the presenta-
tion of this claim were set forth in considerable detail, as appears
from the following extract from the letter:
As of possible guidance and assistance to you in this connection, there are
enclosed herewith copy each of a statement of facts in a Lusitania claim
already pending before the Commission, and a table of documentary proofs
in support thereof, and also a skeleton statement numbered from 1 to 16, inclu-
sive, setting forth the character of evidence that the Commission requires in
all "loss of life" claims. Careful study of these enclosures and by reference
to your office file in this case will no doubt enable you to prepare this claim
in final form during the next two weeks, so that upon receipt of the papers here-
inabove referred to, this matter can be immediately presented to the Com-
mission for its consideration.
You will note from the enclosures that it is necessary to establish the Ameri-
can citizenship of the decedent at the time of his death. If the decedent was
not an American citizen, you should, at any rate, fully establish the fact that







194 I

the claimants were, at the time of the Lusitania disaster and are now citi-
zens of the United States. The dependency, if any, of claimants upon de-
cedent must also be established. All contributions that the decedent may have
frequently or infrequently made to the claimants should be set forth and
proved, as well as the love and affection existing between the claimants and the
decedent, and the mental anguish and nervous shock that must necessarily
have been sustained by the claimants on account of decedent's untimely death.
Presence of decedent on board the Steamship Lusitania should be proved,
and can best be done by requesting the Cunard Steamship Company to forward
to this office an affidavit, in duplicate, to that effect.
The loss of personal property and effects carried by decedent should be
itemized and proved by the affidavit of one or two persons who are competent
to testify as to the various articles and their value.
Furthermore, decedent's health and physical condition at the time of his death
should be proved and his age, as well as the ages of the claimants should be
made a matter of record. The proper proof necessary to substantiate all these
facts as alleged should consist of either birth certificates or naturalization
certificates, as the case may require, and the affidavits of the claimants and
any disinterested parties who are competent to testify upon any question
involved in this claim.
This claim, however, cannot wait upon all the evidence if it is not at once
forthcoming, and you are therefore urged to prepare your statement of facts
as hereinbefore set forth, making all the material allegations, supported by as
much of the evidence that is presently available. The additional information
or data that you will, of course, have to furnish at a later date, will be
promptly placed before the Commission by way of supplement or amendment
to the record, as the case may require, as soon as it is received by this office.
No acknowledgment by the attorneys of the receipt of this letter
having been received by the Agency, a telegram was sent to them on
June 20th, asking immediate attention to the claim, and on the same
day the attorneys wrote to the Agency asking for further instruc-
tions as to the preparation of the claim. This letter shows a regret-
table lack of initiative on the part of the attorneys and an apparent
inability to proceed with the preparation and presentation of the
claim without detailed instructions and suggestions from the Agency.
They ask whether the new petition should be signed by one of the
children instead of by the widow, and how the facts in support of
the claim should be verified, and whether the birth certificates of the
children should be tinder seal evert when issued by the proper offi-
cial authorities, and whether a statement which they had drafted
as to the earning capacity and life expectation of the deceased was
sufficient, or, "is there anything else which we should add?" On






195


the following day the Agency sent. a helpful letter in reply, giving
further instructions and urging the immediate filing of the proposed
statement with whatever documentary evidence was then available,
and adding, any additional information which may be necessary
and which you may desire to submit will be entertained by the
Agency at a later date if forthcoming within a reasonable time, and
will, when received, be forthwith presented to the Conunmmission by
way of supplement or amendment to the record as the case may
require."
On July 2nd the attorneys wrote again, asking for further instruc-
tions. They stated that they feared they would be unable to obtain
birth certificates for two of the children, and asked if your Com-
mission will be willing to dispense with these two birth certificates,"
in view of the fact that the dates and places of birth of these two
children have been shown by affidavits of the mother, and will be
further shown by the affidavit of one of the sisters." They add, It
would seem as if this should be sufficient. If it is, we can imme-
diately complete the affidavit and forward it to you." The Agency
replied on the following day, stating that the affidavit of the mother
respecting the birth of the two children above mentioned "will be
sufficient for present purposes," and that as soon as the evidence and
statement of fact are received the case will at once be presented to
the Commission for adjudication.
On July 8th the attorneys again wrote for further instructions.
They stated that the statement, with exhibits attached, had been
completed and was ready to be signed and verified by one of the
daughters, but that the exhibits had not yet been copied, and as some
of them were very long and "contain a great deal of fine printed
matter" they would require some time to copy. They ask whether
it would be necessary to have these exhibits copied word by word,
to be attached to the copies of the statement, or will it be sufficient
if we refer to the exhibits in the copy statements as Exhibits A, B, C,
etc. attached to the original." They added, "As soon as we hear
from you, we will forward the original to Mrs. O'Brien to have her
execute it."
With the assistance of the Agency all of these difficulties and
problems were at last straightened out, and on July 21, 1924, the
attorneys filed the new statement, verified by one of the children,






196

supplementing the widow's statement of November 24, 1923, together
with all the exhibits they had been able to procure, and they again
asked for further instructions if the Agency should require any
further information.
It appears from the record that the Agency did desire additional
information, and another letter of instructions was written to the
attorneys on October 6, 1924, asking for an affidavit from the de-
ceased's brother showing the deceased's earning .capacity and also
for further information as to the dependency of the claimants upon
the deceased, and also as to the deceased's regular and incidental con-
tributions to the support of his family, all of which, as had already
been pointed out, was absolutely essential to establish the claim on
the new basis on which it was being presented. On October 27th the
attorneys filed with the Agency two affidavits, one by the deceased's
brother and one by the widow, covering the points above mentioned.
On February 14, 1925, the Agency again had occasion to write
to the attorneys, pointing out that they had omitted to furnish proof
of the American nationality of the husband of Mrs. O'Brien, one of
the daughters of the deceased on whose behalf the claim was made,
and who had verified the petition. It was explained that notwith-
standing the American nationality of Mrs. O'Brien by birth, she
might have lost that nationality through marriage if her husband
was a foreigner. Similar information was requested with respect to
the husbands of the other married daughters.
Some of the information asked for by the Agency was furnished
by the attorneys in their letter of March 3, 1925, and two days later
the Commission's award on behalf of the three minor children was
entered as above stated.
The attorneys failed to furnish acceptable proof of the nationality
of one of the married daughters, Annie Isabella Monahan, as ap-
pears from the following extract from the Commission's final
decision.
A third daughter, Annie I. Monahan. has since married but the date of her
marriage and the nationality of her husband are not disclosed by the record,
and it is impossible from the record ,to determine whether her claim for
damages is one which falls within the terms of the Treaty of Berlin.
Turning now to the question of the value of the services rendered
by these attorneys, a reasonable fee for which is to be fixed in these
proceedings, several preliminary considerations suggest themselves.







197


As above stated, in view of the contingent fee basis on which these
attorneys were employed, they are not entitled to compensation for
services rendered in the prosecution of the claims of those claimants
on whose behalf no award was made, and only the services rendered
by them on behalf of the three claimants participating in the award
can be considered in fixing the fee to be paid by them to these
attorneys.
Attention has also been called to the statement in the affidavit filed
on the part of these attorneys that in presenting these, claims they
represented nine claimants in all. The records of the Commission
show that all of these claims were dealt with as a group by the
attorneys at the outset and practically throughout their presentation,
and also were so discu.,ed in the correspondence between the attor-
neys and the Agency. It follows, therefore, that only approximately
one-third of the total amount of the work done by these attorneys
was done for the benefit of the three claimants receiving awards.
It also appears from the correspondence between the attorneys and
the American Agency, some of which is quoted above, that in this
case, as in the case dealt with in Decision No. 12, in a similar proceed-
ing, the American Agency did practically everything that was done
in the presentation of the claim except procuring the evidence, and
even as to that the Agency was obliged to instruct the attorneys about
the character of evidence necessary and how it should be presented.
The attorneys seemed to be unable or unwilling to take any responsi-
bility in the prosecution of this claim, or any steps in its preparation
without detailed instructions from the American Agent.
No brief on the facts or on any question of law was filed by the
attorneys, although a very important and somewhat difficult question
of law was raised in this case, through the contention of the German
Agent that these claims were not within the jurisdiction of this
Commission because the decedent was not an American national at
the time of his death. This question also arose in several other cases,
and was discussed while this case was pending, and it was finally
settled favorably to the American claimants, who had suffered
damages through the death of an alien, but this settlement was
adopted, without the participation or assistance of these attorneys, by
the Commission's Administrative Decision No. VI, rendered on
January 30, 1925, about a month before fhe award was made in
this case.






198 RIN

The actual services rendered by these attorneys seem to have
consisted in procuring proof of the father's death and the American
nationality o.f several of the claimants, and preparing a few brief I'
affidavits showing the dependence of several of the claimants upon
the deceased, and his earning capacity and actual and probable
contributions to their support.
The documents submitted by these attorneys in response to the "i
request of the American Agency as above mentioned, and subse-
quently used in support of the claims in which awards were made,
consisted of four typewritten affidavits, aggregating nine pages in
length, which were evidently prepared in the office of these at-
torneys and applied equally to both groups of claimants; three
printed or photostatic copies of the birth certificates of the three
minor children and of the husband of Nora Connelly McCabe, and
a printed copy of their marriage certificate.
Other documents filed by these attorneys, but not used in sup-
port of the claims in which awards were made, consisted of one
typewritten affidavit, one page in length, which was evidently pre-
pared in the office of these attorneys; two printed or photostatic
copies of birth certificates of the husbands of two of the deceased's
daughters; and two printed copies of the certificates of their mar-
riage; a photostatic copy of the marriage license of the deceased
and his wife; and a printed copy of the Declaration of Intention
of the deceased to become an American citizen, which was of no
importance in this case.
With reference to the above documents, the claimants' mother,
Mrs. Delia Connelly, in her affidavit, alleges that all of the above
printed or photostatic documents were obtained by her or members
of her family at the request of these attorneys and that all fees re-
quired by the issuing authorities were paid by her or members of her
family. She further alleges that she assisted in obtaining some at
least of the other memoranda filed by these attorneys.
It is admitted in a letter filed by the attorneys in reply to the
widow's affidavit that she "probably did personally procure or de- -|
liver to us one or two of these certificates at our direction and re-
quest" just as practically all of the evidence was procured through
the attorneys at the direction and request of the American Agent.
The record affirmatively supports the widow's contention as to the '"







199


three birth certificates which were procured from the Office of the
Clerk of the City of Holyoke, certifying the birth of the three chil-
dren, Owen, Mary and Annie Isabella, which certificates are in the
form of post cards addressed to Mrs. D. Connelly, the widow.
A special service was rendered on behalf of the younger son, Fran-
cis A. Connelly, who at the time the award was made was still a minor,
and these attorneys procured the appointment of his mother as guard-
ing during his minority. It is appropriate, therefore, that this serv-
ice should be taken into consideration in fixing the fee to be paid
out of his award. In that connection, however, it is also to be noted
that although the award on his behalf is larger than the other two
awards the additional amount thus awarded to him does not repre-
sent any additional or greater services rendered by the attorneys in
his case. The reason why his share was $500 more than the share of
the other two claimants was because he was shown to be an invalid
with a serious permanent disability, which made his dependence upon
his father greater than the dependence of the others, who would have
ceased to be dependents on their father in any event when they came
of age. This seemed to the Commission to justify the allotment to
the invalid son of a larger share than to the others of the total esti-
mated amount of damages, the principal part of which represented
the probable contributions of the father for the period of his life
expectancy, capitalized at its present value at the time of his death,
in accordance with standard life insurance tables. A larger award
to him in these circumstances does not justify charging him a larger
fee than is fixed for the other claimants for the same services. On
the contrary, to reduce the amount to be received by him by increas-
ing the attorneys' fee in his case would defeat. the purpose of the
Commission in giving him a larger award than given to the other
claimants.
Mr. Delamater's services apparently consisted solely in giving
notice to the State Department of the circumstances under which
these claims arose, which notice, as above stated, notwithstanding
p. his subsequent failure to file these claims with this Commission,
saved them from exclusion by default from the jurisdiction of this
Commission when they were afterwards presented by the new attor-
neys, although it must also be noted that the later extension of the
time for filing claims to July 1st of last year, by agreement between






200 T I

the two Governments, would have brought these claims before this
Commission as belated claims, and considerably diminishes the value
of the original notice to the State Department.
Now, therefore, in the circumstances above set forth, and consid.
ering the character and extent and value of the services rendered by
these attorneys, and that the payment of their compensation was
contingent upon securing and collecting an award, and in view of '
the considerations stated in the general Jurisdictional and Admin-
istrative Decision rendered by the American Commissioner under
date of September 28, 1928, and after careful examination and full
consideration of the information furnished in this proceeding by the
attorneys and the claimants and by the records of this Commission 9
pertinent to the questions involved, and after due deliberation
thereon..
The American Commissioner decides and fixes as the reasonable |
fees to be paid to their attorneys, Arthur E. Walradt and Charles -
P. Blaney, by each of the claimants Nora Connelly McCabe and
Andrew Connelly the sum of one hundred and seventy-five dollars
($175), and by the claimant Francis A. Connelly the sum of two
hundred dollars ($200), amounting in all to five hundred and fifty
dollars ($550), in addition to whatever necessary disbursements
were expended by these attorneys on behalf of these claimants, the
said fees to be paid by the claimants and received by the attorneys
as full compensation for all services rendered in the prosecution and
collection of their claims, as defined in Section 9 of the Settlement
of War Claims Act of 1928."
Done at Washington, D. C., this 20th day of February, 1929.
CHANDLER P. ANDERSON,
A mericanr Comlntssion er,
Mixed Clainms Commission,
United States and Germany.

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