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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AMERICAN


MIXED


IITED


CLAIMS


STATES


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COMMISSIONER.


COMMISSION


AND


GERMANY


I *I


DECISION


NO.


IN THE MATTER OF


)NABLE


ER


THE


EMENT


)CKET NOS.


FEES


FOR


AUTHORITY


WAR


ATTORNEYS


SECTION


ACT


CLAIMS


10140 AND 10141


ra Martin Benford,


Peter


Olaimant


Baumer, Attorney


'HANDLER P


Amesri can 1


OR

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MIXED


CLAIMS


COMMISSION,


UNITED


STATES


AND GERMANY


Established in pursuance of the Agreement between


United


States and


Germany


of August 10, 1922


CHANDLER
Amerion


ANDERSON


Oomumnieeionr

(ii)


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THE


AMERICAN


MIXED


CLAIMS


COMMISSIONER

COMMISSION


UNITED


STATES


AND


GERMANY


DECISION NO. 78


IN THE MATTER OF


FIXING


REASONABLE


FEES


FOR


ATTORNEYS


OR


AGENTS UNDER THE AUTHORITY


OF SECTION 9 OF


THE


"SETTLEMENT


WAR CLAIMS


ACT


OF


1928"


DOCKET NOS. 10140 AND 10141


Ira Martin Benford, Claimant


Peter Ba mer, Attorney


The


above


named


claimant


duly


filed


with


American


Commissioner a written request that he fix a reasonable fee to be paid
by him to his attorney, Peter Baumer, of New York City, New York,
as compensation for whatever services have been rendered by him on
behalf of and with the authority of the claimant, such services being


of the character described


provisions


Section


9 of the


" Settlement of War Claims Act of 1928 ".
The claimant has objected to the amount of the fee asked by the
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516

In this case an award was rendered by this Commission on Janu-


1930,


thereon


on behalf ol
\ rate of five


claimant


cent


$5,000ooo


annum


with


interest


from November


1923,


date


payment,


which


amount


represents


damages


suffered by the claimant on account of physical injuries received by
him when a German submarine, on July 15,1917, torpedoed the steam-


ship "Campana ", on


which the claimant was a member of the crew


in the capacity of First Assistant Engineer, and for the further sum
of $3,000, with interest thereon at the rate of five per cent per annum


from November


11, 1918, to the date of payment,


which amount rep-


resents


value


personal


property


belonging


claimant


lost at the time of the torpedoing.
This award was based on an agreed statement of facts, signed by


American


and


German


Agents


on September 27,


1929,


recom-


mending an award for the amounts awarded.


February


1930,


Treasury


Department


mailed


claimant in care of the attorney two checks dated February


12, 1930,


in the amounts of $6,647.32 and $4,809.03,


of'the two items in the award


in payment,


respectively,


, amounting in all to $11,456.35.


These


checks were not delivered to the claimant by the attorney, and later


were


returned


Treasury


Department


request,


and


now in the possession of that Department.


The at
one-half
Treasury


tourney


asks


as compensation


amount


Department


received


in payment


this


his services
* the claimar
award. In


in this case
it from the
addition he


asks reimbursement for one-half


of his expenses, the total of which


estimates


$1,850.


also


requests


that


repaid


amount of $100 which he alleges was loaned by him to the claimant.
The total which he thus claims to be due him is $6,753.17.
It may be noted in passing, although it is immaterial for the rea-


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oIl no +b lJ- a nnrfi-n; fIri.


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tificate
award


therefore


this


was considered by the Commission in


making the


case.


The attorney
reimbursement


bases his request


expenses


upon


for compensation


a fee


agreement


for services


resulting


from


retainer agreement and


power of


attorney


signed


by the claimant


on April


1926


and


a final


power


attorney "


signed


claimant on


November


1929


matter of


which


documents


was


prepared and executed after the American and German Agents had
p r e p a r ed"K/:


signed


the agreed statement above


mentioned,


on which the award


was based.
The claimaI
as attempted


through


fluence
partmei


it challenges the


boastful


prov
and


validity


of this


by numerous documents


false


representations


fee a
and


as to the


with members of Congress and officials of the


It,


and


of the staff


of this Commission,


agreement .


affidavits that


attorney's
Treasury


attorney


De-


grossly


exaggerated the value of his services, and thus induced the claimant
to make a fee agreement for a larger fee than his actual legal serv-


ices would


justify
u~ *


The


attorney


denies


these


charges,


which


alleges are falsely and maliciously made.
An investigation of these charges and
rolve subpoenaing and examining witness


taking of testimony under oath, w
has not authority to do under the


by the provisions of the


which th
jurisdi


" Settlement of


counter charges would in-
es and documents, and the
Le American Commissioner
iction conferred upon hint
War Claims Act of 1928 ".


which does not provide for issuing subpoenas, administering oaths,
and the taking of qral testimony by the American Commissioner.


SMoreover, the part of this fee agreement,


which provides


for the


pa y by the


attorney,.


claimant
outside


Ai erican Commisioner,


one-half


the expenses


jurisdiction


which


only extends t(


conferred
o fixing a


incurred by


upon


the


reasonable


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518


a court would have ample facilities for investigating these disburse-


ments


and


determining


fee agreement.


claimant's


so far


as the


liability
charges


under


that


hereinabov


aspect
i men-


tioned involve the question of unprofessional conduct on the part of


this attorney, that also


is a question


which cannot be dealt with by


the American Commissioner in this proceeding,


and should be dealt


with


a court of record in New


York State


where


this


attorney


is practicing law as a member of the Bar of that State.


Furthermore,


question


validity


this


agreement


is immaterial so far as corn
need not be decided for the


pensation


for services is concerned, and


purpose of the


present proceedings be-


cause


Act


under


which


this


proceeding


is taken,


provides


Section 9 for the fixing by the American Commissioner of a reason-


able


" whether


or not


fixed


under


any


contract


or agreement,"


and in


this case, for the reasons set out below,


the American


Com-


missioner finds that this fee agreement should


The American


solely to


a consid


Commissioner,
leration of the


therefore


will


be disregarded.
confine this decision


value of the services


actually


ren-


dered by the attorney on behalf of the claimant.
It appears that this claim was first brought to the attention of the


Department of State by


Mr. Bion B.


Libby, an attorney


at law, of


Washington, D.


who


wrote


Solicitor


of the


Department


under date of November 5, 1925, that "in taking up the matter with


Mixed


Claims


Commission


it occurs


that


there


is no record in


that office of his having filed a claim for loss of personal effects and


injuries sustained." 2
I am in receipt to-day


He adds:


of a communication from Mr.


Benford in


which he


states that such claim was forwarded to the State Department on January 10,


1923.


Upon


advising the


Mixed


Claims


Commission


of the


contents of


letter, it was suggested that the question be submitted to you for your opinion


whether or not such claim


can properly be reinstated


upon proof that it was


filed within the time limit.


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by
cour


519


satisfactory


se,


include


documentary
a copy of the


evidence.
covering


Such
letter


evidence


should,


Department."


The services
adding to tl


thus


va


present attoey.
Eight months


placed


Mr.


Libby


rendered


lue of

later


Mr.


Libby


can


services subsequently


Mr.


as claim


Peter
ant's


Baumer,
attorney,


who
wrote


regarded


rendered


meanwhile
on July


dby

had
29, 1


926,


to the Mixed Claims Commission asking to be advised whether there
was any record of the claimant's injury and loss of personal effects


A






0 ~ E


whether


Commission


American Agency replied
is the first intimation tha


by you."


.The


filing claims
and that "in


be received
State, your


Agei


before
view


by th
letter


k
I


would


then


accept


under date of August 2,


t this Agency


icy then informed
this Commission


of this !
Agency
is being


Fact,
by


ha


Lii


lad


and inasm


reference


referred


his c
1926,


claim.


The


that "this


Is had of a possible
n that the time- limi
expired on April 9,
inch as claiins could
from the Denartme:


that


Department


claim


-t


1923,
only


nt


such


action as it may
On September


again
from
into t
State,
been


wro
the
;his


te to th
State I
matter.


which infc
' associated


deem appropriate in the circumstances."
19, 1928, upwards of two years later, th:
is Commission, stating that he had not
department and asking that the Comm
His letter was referred to the Depa
)rmed him on October 5. 1928. that his


I /


is attorney


heard


mission 1
trtment
letter


ook


had


with the other papers in the Department's files in


relation


late


claims


against


Germany,


reference


and


when


Department


may


in a position


give


consideration


to the presentation of such claims to the Mixed Claims Commission,


pursuant to
of 1928 '."


provisions of the


' Settlement


of War


Claims


Act


On December 31, 1928,


United States and


Germany,


pursuant


j.. a., 1 .t A -t a


and


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520


The above
executed by


date of February


questionnaire


claimant,
14, 1929.


forms
and
With


were


filled


returned


Agency


attorney,
under


these questionnaires the attorney


also forwarded to the Agency the following documents:
Power of attorney executed by the claimant on April 1, 1926, in
favor of this attorney.


Statement of facts sworn


by the claimant on April


Affidavit of the claimant dated January 25,


1929, in


1926.


answer to


question No. 19 of Questionnaire Form No. 5


(relating to his


earning capacity).
List of personal property lost by the claimant sworn to on April
1, 1926.
In reply to the questions in the questionnaires regarding Mlaimant's


citizenship,


thereof,


the attorney


referred


stated


that


American


was unable


Agency


such


obtain
proof


proof


Commissioner of Pensions at Washington, D. C.


A statement estab-


fishing


claimant's


citizenship


was


obtained


directly


from


Commissioner of Pensions by the American Agency.


On February 21, 1929,


the American Agency requested the attorney


furnish


corroborative evidence


that the


claimant actually


owned.


property for which


claim


was made and similar


evidence as to


claimant's earning capacity and


physical condition


prior to the time


was


injured.


reply


this


letter


attorney,


on March 2,


1929, forwarded


Agency two


additional


copies


claimant's


list of losses and two copies of the retainer agreement signed by the


claimant on April 1, 1926.


In acknowledging this letter, on March


7, 1929, the Agency informed the attorney that he would be given an


extension of ten days within which to


furnish the corroborative evi-


dence above mentioned.
The attorney then wrote to the Agency on March 27, 1929, enclosing


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521


We found a sailor but his


testimony would not


do the


Commission


any good


because he never was in the chief engineer's room.


We also found a


Quarter


Master but h


is testimony will


not help because neither one of the men ever saw


the chief


engineer's


room


when


they


were confronted


with


Mr. Benford


they did not even recognize him.


In acknowledging the above letter from


attorney the Agency


stated that this claim had been


presented to the Commission,


and


further documents were filed bv the attorney
The attorney alleges that he made several


in this case.
trips and long distance


telephone


calls


Wa.shington


in connection


with


this


claim


, but


according to the record of the Commission,


the only effective service


of this nature rendered


by him was to attend a conference in


Wash-


*ington in September


tative


1929


American


with


Agency,


the German


which


Agent and


conference


a represent


German


Agent agreed not


oppose


an award


amount


afterwards


awarded.
claimant.


This offer was accepted by the attorney


and


two


Agents


signed'


agreed


on behalf


of the


statement


September 27


1929


above referred


, recommending


an award for


the amounts awarded.


No brief on any question of law or fact involved in this claim was
filed by this attorney.


In the American Commissioner'


dated August 30, 1930, he stated


Administrative Decision No.


that the Agent of the Government


United


agreement
Germany,


claim
time


filed,


States


before


December


"found


this
1928


necessary,


amounting to


limits fixed


Commission,


between


on account


approximately


Agreement


claims and supporting evidence,


form


of questionnaire


information


and


with


blan


character


o


as to


to send t
k spaces
If evidence


m carrying


of the
seven t
the sul


United


large


housan


mission


o each claimant


for the an
e required


iswers


States


and


number
d, and


of these
a printed
covering


in support


I'


"







522

The Administrative Decision of the American Commissioner aboa
mentioned further states:

The information asked for in these questionnaires was designed to establish,
inter alos, the American nationality status of the claim and the claimant with
reference to the periods of German liability, also the amount of the claim, and
whether it came within the jurisdictions of the Commission and presented facts


establishing liability of the German Government under the Treaty of B


The
stated
lawyer


filled
ment
form
suppo
limit
that


information asked for
in simple and ordinary;
in dealing with them
n and sworn to by th
>f the claim presented.
f memorial asking for


in these questionnaires was designed to
y terms so as not to require the assist
. These questionnaires, when the answ
e claimant, constituted in most cases ti
This statement, accompanied by a shori
the damages claimed, together with the


rting evidence, was then filed by the American
fixed by the new Agreement between the two
the American Agent considered that the facts


Agent within


erlin.

establish,
nce of a
ers were
he state-
t printed
available
the time


Governments, provided
presented justified the


prosecution of the claim.


Otherwise the claim was abandoned.


In none of the proceedings taken, either by the Agents or by the Commission
itself, which resulted in an award, was there any opportunity or occasion for


the participation of private attor


present
assist:
cases, I
ing, or
The
applied
applied
to the


:ed exceptional difficulties.
nce of the American Age
however, valuable services
in assisting the claimants
short and summary form
to these "late claims," d
in the prosecution of the


responsibility undertaken


neys in the presentation of the claim unless it
In any case claimants were entitled to the
rncy, which was always available. In many
were rendered by private attorneys in procur-
in procuring, supporting or rebuttal evidence.
of procedure outlined above, which has been
offered in many respects from that which was
original claims, and particularly with respect
and the character of legal services rendered


by private attorneys in many of the earlier claims.


e
Inasmuch as, for the reasons above indicated, the character and value of legal
services rendered by private attorneys in the late claims," with but few excep-
tions, have been standardized and reduced to a common and minimum basis, the
American Commissioner considers that unlike the earlier cases a common and
standard rate of compensation can now be adopted for these late claims," ex-
cept in cases in which the services rendered are shown to have been of more or
less value than the common standard.


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523


claims,


which


relegates


private


comparatively minor part in


are called


upon


to do in


attorneys and


the presentation


cases which


counsel
of such


a subordinate


claims.


are admittedly within


All that they
the jurisdiction


of the Commission, as was the situation with these claims,


evidence called for by the American Agent,


was to produce the


who took the entire responsibility


for the presentation of the claims and of the negotiations for the compromise
settlement which was agreed upon in these cases.
"Another important distinction is that in these cases the private attorneys
have nothing to do with the collection of the awards of this Commission, the


payment of which has been arranged by the


United States Government.


other


words,


the United


States


Government


was the


claimant in


every case before this Commission and prosecuted the claims through its own


Agent and at its own expense.


In every case the awards of this Commission


were made- to the


behalf of the private


United States Government as the primary


interests concerned


as the subordinate


claimant,
claimant,


but on
whose


claim the United States has espoused and made its own before it could be pre-
sented as an international claim.


* Taking into con


sideration the important services rendered without


charge by the United States Government for the benefit of the claimants,


in ordinary


collection


or negligence


cases


the private


attorneys


would


which
have


been called upon to perform for their clients,


the American Commissioner feels


justified in fixing a lower rate of compensation for the private attorneys in these


cases than


in municipal


the rate


court


which
cases."


they


claim


as based


on alleged


customary


charges


Accordingly,


Decision


American


adopted


Commissioner


a general


in his


standard


Administrative


reasonable attor-


ney


fees


on a contingent


basis


services


rendered


these


' late claims.


The American Commissioner has fixed fees in three other fee-fixing


. proceedings in which this attorney was a party (Decisions Nos.


and 58), but they were not late claims cases.


25, 32,


This attorney also


appeared in


the case


in which Dec


ion No.


was rendered


which


was a


"late claims case, but in that decision the American Commis-


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UNIVERSITY OF FLORIDA

iMi3i 1262 084I 4 I I II
3 1262 08484 1724


character to justify exceptional treatment, but come within the class


services


declared


American


Commissioner


have


been


"standardized and reduced


to a common and minimum basis"


American Commissioner holds that the general standard


for reason-


able attorney's


fees


adopted in his Administrative


Decision


should be applied in this case.


The application of this standard rate


would result in a fee for this attorney of $S3.


4 @K
V <1i


Now


therefore


, in view of the considerations above set forth, a


of the contingent character of the fee arrangement under which the


claim was prosecuted, making the attorney'1


compensation dependent


upon


securing


and


collecting


an award


and


considerations


stated in the American Commissioner's Administrative Decision No.


II, and


after careful


examination and full consideration


of the


formation furnished in this proceeding


by the attorney, and


by the


claimant


and


records


of this


Commission,


pertinent


questions involved, and after due deliberation thereon,


The


American


Commissioner


decides


and


fixes as


reasonable
'M': /'* *, **13", *I <: '


fee to be paid by the claimant,


Ira Martin Benford, to his said attor-


ney,


Peter Baumer


, in this case, the sum of eight hundred and forty-


three dollars and sixty-nine cents


($843.69), the said fee to be pai


d. Th c


by the claimant


and received


by the attorney


as full :compensation


for all services rendered by him in the prosecution and collection of


this claim, as defined in Section 9 of the Settlement of War Clams


<4


Act of 1928"


Done at


Washington, D.


C., this 19th day of February, 1932.


CHANDLER P. ANDsoNw,


Amerias Comnia'one
Mied Claims Gon weia
Ujnted Sties and Germawy.


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