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* r:. .: . I.~ kr: ": C;.. 4L. THE AMERICAN COMMISSIONER 1.4 'VainF rt F~NIH.. I~B~ll:' .--.9:. r-!.. ... Pih e. WI.:... -: ~er4~ I': MIXED CLAIMS COMMISSION UNITED STATES AND GERMANY DECISION NO. 63 IN THE MATTER OF FIXING REASONABLE FEES FOR ATTORNEYS AGENTS UNDER THE AUTHORITY OF SECTION 9 OF THE " SETTLEMENT OF WAR CLAIMS ACT OF 1928 " DOCKET NO. 4700 Va a. - I,' .91 ,....AH' 'C~.. rip: I.. Charles C. Bobart, Claimar ,t Lewis Arthw ur McGouwn., Attorney CHANDLER P. ANDERSON America'n Commnissio ner OR 63 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 Americaan ommuisioner ;jB~i~ "; :19i i""E THE AME MIXED UNITED RICAN CLAIMS STATES COMMISSIONER COMMISSION AND GERMANY DECISION NO. 63 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. Charles C. Bobacrt Le wis Ard thIuo 4700 Clai man.t McGowan., Attorney October 1928, the above named claimant filed with American Commissioner a written request that he fix a reasonable fee to be paid by him to his attorney, Lewis Arthur McGowan, of Washington, D. C., 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 in the provisions of .Section 9 of the Settlement of War Claims Act of 1928 ". I; I. :'V 411k: * W rT -w mr 412 Commissioner made the following rulingi 17, 1929, addressed to the attorney: I have received your letter of January 7th filed any information at all showing the reu g, in a letter dated January informing me that you have not asonableness of the fee asked you in the proceeding pending before me in the matter of the claim of Charles C. Bobart mailed on (Docket No. 4700) April because you felt performed my duty n sending under out the notice the law that respect and, therefore, that I would eventually rule the matter of fixing your fee was outside of my jurisdiction through the failure of the claimant to file within the prescribed ninety-day period after that notice was mailed request that I fix a reasonable fee. Under the provisions of Clause of Section 9 of the " Settlement of War Claims Act of 1928," I am authorized and requested to ma to each claimant, on whose behalf an award was made the Mi Claims Commission notice stated, notice of the provisions such was a notice addressed of Section was sent 9 of registered to the claimant return receipt card from the Postmaster you r io~~ed care, case, on April as above 1928. the registered this notice was This received at your office on April 5, 1928. forwarded It appears, to the claimant in time however for him , that to file notice was not his request within the prescribed ninety-day period. In mailing this notice to the claimant your care relied upon forward it to him as was done other attorneys a number similar cases. You state in your letter to me of November 1928, that, when conferred with the claimant with reference to tl \e payment your fee, you banded this notice to him personally at his home, t imt he e samined it in your presence and then returned it you. further s'Lute the claimant's information War Claims about Act his privilege )f 1928" under to request me pro v to fi sons of the Settlement a reasonable to be paid to you came from the discussion you had with him at home. It further appears from your previous letter to me of October 25, 1928, that conference with the claimant at which handed notice which was the source of his information regarding th did not take place until July, because you state that aese fee fi Wraite sing proceedings Md until July for - 1- ____ *. '----- , 13@ LA w*adare wwath 5 17T/5WS 1 - 1 - a 2 -1 mi, ,r,!,,,, L qE 8 413 "The only addresses available for the mailing these notices were those on file with the Agent for the United States before Commission, many of which were inadequate and some of which were in the care of the attorn who had appeared for the claimant, notice to the claimant. and who in some It subsequently cases appeal red failed to forward the for these reasons some of the claimants did not actually receive notice time to file with American Commissioner, within the ninety-day period after the date of mailing as required by the Act. a request to have In these cases, certain other cases where the notice not reached claimant promptly there been no laches or igence on the part of the claimant responding to the notice, the American Co1 Uninli ouer held that the con- templa ted the mailiu the notice to the claimants at an add ress throu gh which it would be received by them, and he caused to be mailed a new notice direct to tl ie claimant's address when such address was ascertained in order to give such claimants an oDp)ortunit~v secure the benefits which gress tended they should have under the prove sions of this Act." In view of the above considerations a duplicate notice was ed direct to the claimant on October 9th last, and he has duly filed with me a written that I fix a reasonable fee to be paid to you in accordance therewith. request In these circumstances Cons tlmt have acquired necessary sdiction fixing the attorney's fee in this case. time within which you may furnish the information requested printed notice of October 1928 , is hereby extended to February 1929. Should you fail to furnish such information by that date, the only alter- native open to me will from the records of th be to determine the character and value of your case in the possession of th services Commission. Thereafter, stoner in response , the attorney filed request with him an affidavit American 1iv'in Commis- the information which he desired to have considered by the American Commissioner as showing reasonableness of the fee asked *1inl which infor- mation was brought attention claimant, who filed affidavit in reply, a copy which was transmitted attorney, who not filed a reply. --~~n I f 1 -- 1; :; r"1* s.. V 414 ment, which amount represents value of 1 longing to the claimant lost at the time of hi was a member of the crew of fireman. ury Dec the E meralda The total amount received by the clai )artrnent, in payment of this award paid direct to him on May 23, The attorney requests as co $1,564.55, 'md I- A n addition $85.00, accord in 1928. mpensation reimbursement of e terms referred to. The claimant states in h letter of O services ctober 8 Commissioner: In June ington, for injuries 1923 engaged to represent received McGowan before he could b 1923. I was preparing In his made by me Lewis me in my while McGowan ci m against wa il up an agreement egin on mn its terms, also to pay and pre was him all y case. to pay This him 3( me and agreement w 1% of the an of the costs and other e sending my claim. affidavit filed n this proceeding, personal property . capture. The claimant S", in the capacity of mant from the Treas- ; $5,215.53, which was is services the sum of expenses amounting to agreement hereinafter 1928, to the American Attorney at Law, Wash- the German Government oner of war. 1 directed that I sign it as signed by me in June,. mount he received for me. enses incurred by him in aimant further states: gaged Mr McGowan after he had twice communicated with me request- I have him take care of my case for me, he having been unknown me prior to that time. The attorney states mb i is affidavit with reference employ- ment nthi case and initial presentation of thi claim: That the claimant, Charles Bobar t, was advised me on Apri 1923, ( Exhibit Germaznv answer on April to his letter . 1923 csflit April notice 1923 to file a claim claim against to the Department State Scasep (Exhibit I' Exhibit On April 9. This wa 1923, claimnut tele the final raphed me to proceed with to give notice under the Agree- .4 " ^^ 415 support McGowan h copies of his these and submitted other sixty-one statements exhibits, affidavit consistaln mainly correspondence in this case with the claimant and the American Agency before tLhi Commi with ssion. examination Mr. McGowan affidavit and exhibits attached thereto shows that he ha failed to file the claimant' letter him dated April 2, 1923 or any previous communication from the claimant. Exhibit No. 1 to hi affidavit i a copy of hi letter to the claimant, dated April 7 I acknowledgE 1923 in which it is stated Receipt of your letter of April 2nd. You are entitled to filin on account your .being a claim a held inst the a prisoner Imperial on the S. German Go Esmeralde, )vernment can recover a substantial indemnity from the Imperial German Government. If you wish me to proceed with th me to proceed with the case as Monday case Apri please send me a telegram telling 9th, 1923, is the last day in which the claim can be filed. I will file your claim without charge later we can get to- gether on the matter of what I am to receive for my services providing .aJ teAL thing is recovered, and the event no recovery there wil be no charge to you for my services. Mr. McGowan wrote Department of State on the same da.y have been requested Charles C. Bobart an American citizen of Balti- more, Maryland, to. file a claim against the Imperial German Government account of his being h eld prisoner in Germany. Dama ges are requested in the amount, of ten thousand dollars. The claimant had authorized filing claim that time, but on April 9, 1923 , he t.elegrapl)hed NMr McGowan to "l) proceed with the case " , and on April 10, 1923. Mr. McGowan replied beg to questing advise you, of the receipt of your me to proceed with your claim and telegram in reply of the 9th. thereto I am instant pleased Fi:1 416 May I impress upon you the imperative necessity in attending to this matter mnaediately Washington, as the commission sooner has n send IOW begun to adjudicate me the information cases the quicker itward will be made. a have requested from the Imperial German Government an indemnity to the amount of ten thousand dollars, and I am of the opinion that a very substantial #art of this sum will be awarded to the claimant. On May 20, 1923, the claimant replied: I write you a lines to let you know that I don't understand how make these papers was good healthy when went to Germany I was ruptured after I was there about 8 or 9 months but I was not tended to for that I was in the hospital 4 months, 2 weeks andI While was there and I have not been the same since, I have had trouble with my stomach ever since till I had to be operated on twice and can't do any heavy work, for I am under the doctor's care yet I don't make any more than living wages and have a hard time to get along on. I would write sooner but I was trying to get money enough to come over and see you if you would file the papers outright and let me know what to do. Mr. McGowan states in his affidavit that upon receipt of this letter he conferred with claimant and advised him as to the char- acter of proof required and told him I On June 9, 1923, the claimant again would assist in procuring it" wrote to Mr. McGowan: A few lines to let you know that I am sorrow that I have keep you so long but I have had trouble in getting the doctor's. They have been out of town. I have done the best I could in filling out the papers. If you receive any money, please let me know what bills so that they can not come back at me for just as soon as I get it I will have to go to the hospital again to be operated on again. I am having a hard time to get along. he contingent fee agreement involved in this case was enclosed .:t.ii II" II*~ Ve 417 * would undoubtedly be justified in fixing the amount specified in the contracts. other cases, however, particularly where large contingent are specified, it is hoped that the fees ultimately fixed will bear a proper rela- tion to the work performed and expenditures incurred. The American Commissioner has held in previous deci sons (Deci- sions Nos. 8.25 ,58, 61 and in Sinu- lar proceedings, in terested after hi he falls party, that one of when which (No. this the claimant is entirelyK s own interests in making a fee agreement within the group first referred to. attorney was competent with hi an in- to look attorney, case however the claimant does appear have been " fully capable of protecting agreement. hown "his that own interests in entering was a man worldly into this wisdom or of business experience. Fur t hermo re,, letters to attorney. dated May 20 and June 9 1923 indicate that. when retained this attorney was a very man and was without funds to employ an attorney, and that he did not understand how to execute the ques- tionnaire and the other papers sent to given any thought to the probably hi m. presentation realize that had He apparently a claim a claim against until had not (xern ma ny. the attorney communicated with him. While th attorney might be criticized for disregarding against soliciting ethical claims. rules American neverthel was Bar IzSOnf action initiative of this attorney that notice of thi claim wa given to the Department State prior to the ex piration period during- which claim again st Germany might then filed. must noted however that under later agreement between two Governments, tendin before which the time for filin CoInmi must sslon taken claims claim could have been brought subsequently into consideration I so-called in valuing " late claim " attorney S. I~ .r ii - = 418 The basis of this claim was not for damages on account of being held a prisoner on in his letter claimant' turned health the S. claimant through as a prisoner S. Esmeralde " on account lack in Germany , as stated serious medical this proper Claims by this attorney impairment care while character were dealt with by the Commission in a the only awards made to claimants speciall in that group by themselves, group and were the result of direct negotiations between several others of this group, two Agents. t a compromise settlement the German Agent without requiring actually which, suffered in most claimant. cases Init and trict proof Germany's S. group his was as to case as in offered by the damages liability including therefore, one claimant was unable to produce. As pointed < Administrative American and Jurisdictional Comn ll Dec ision ssioner September general 1928 (page 10) : action fixed under of Congress contract in authorizing or agreement -attorneys or agents suggests an inquiry the fixing prev iouslvy of fees made the circumstances " whether claimants in which or not with such agreements were made. * * * the claimants, informed as to the scope probably cha racter attorneys of the services a iso, were ivell to be rendered their agreements were based upon did not develop as anticipated, ar expectations which assumed conditions perhaps contemplated which a greater less amount, or a different character, of work or responsibility for the attor- neys than was actually required or performed. services actually rendered this attorney, appears from his affidavit which outline in detail the character '-Ind extent of his services, that he prepa red the original statement the claim, which was thereafter verified filed with clainiant American on January S Agency I.,. , 1924 , and presentation was this * I.' 419 can Agency and it appears that the proof the American nation- ality himse of the claimant lIf, assisted by ( was to some extent mne George Wagner, , supplied who by 'the claimant was not employed this attorney. The sequence of which records parties, the events pertinent this to be a Commission this case present and reviewed proceeding information chronologically, hown filed follows: The attorney states in his affidavit: Under date of October 1923 American Agen requested additional proof of the claim Exhibit Called at office American Agent about character of additional proof required. On November 6, 1923, I requested claimant to ve me more information about his maltreatment German prison camps, (Exhibit I had proceeded inquire from some of h fellow prisoners of war about the camps where claim- ant had been interred On January 12, 1924, sic] and to ascertain facts informed American Agent about his that I injuries. would go to Baltimore, (Exhibit 19) to put in proper shape quickly. On same date I requested claimant to communicate with me immediately y, (E shibit 20). * *l * The exhibits attached affidavit, however show that October , 1923, the American Agent informed the attorney * your client an examination to file of the au additional papers statement shows that setting it will forth with be necessary for greater particu- larity the facts in reference to the treatment he received while the German camp which he alleges caused the injuries he received, so, if possib giving the name of the camp where he was interned. November 1923 , the attorney forwarded letter claimant and January 9 reque 1924 hirrIl the American supply the desired Agent informed information. the attorney that the claim would be dismissed unless the evidence requested on October 26, 1923 was forthcoming and on January 12, 1924, the attorney for- anyr K: .. ? . :*. 420 The claimant states in his affidavit wa S always my understanding that Mr. McGowan was representing sev- men who were taken off of the same ship and that the services performed were not oul for me but for all others w homr he represented matter of tl eir claims. The records Commission show that claimant was cor- rectly torney claims informed represented on this point. the claimants It appears from in all them other in which awards were made except two, that "Es Docket Nos. meraldas " 14 and On August 1924 , the American Agent wrote to the attorney that as a result an informal conference with German Agent latter had agreed not to oppose an award in the sum of $3,500, with interest attorney thereon from communicated November this August 26, offer claimant. The 1924 claimant' reply, dated September 1924 is not submitted as an exhibit to the attorney t October 20 affidavit, 19 4, in answer attorney thereto, letter recollmmends ie claimant, a rejection dated offer a n d request " discretionary power " to act claimant. Noveiilher 1924 the claimant wrote the attorney: * I leave it to do the best can with the Mixed Claims Commission, but I hope man Agent offer the only thing I that it will not be any small than see is for you to do the best you can. the Ger- * * November 1924 at torney wrote American Agent that the offer in compromise was not acceptable to the claimant and that additional documentary evidence would furnished. The attorney states that on the American Agency by me after doctoro a conversation November :. "s affidavits with 1924 which doctor. had C " No transmitted to been further prepared evidence was obtained or filed. 421 the American Agency to the claimant, with the statement that any information you might give bearing upon names and addresses of any of your associates who witnessed maltreatment will appreciated and helpful." same date requested the American Agency to secure from the German attorney Govern- ment a copy of the record of the claimant' treatment in the Camp Hospital at Luebeck. * On August 1925 the attorney informed the American Agency that in the other "Esmeraldas cases in which he represented claim- ants, settlements similar that proposed in Bobart case would meet his approval. The American Agent obtained from the German Agent offers of settlement in mera ldas cases. Sep- tember 25 1925 American Agency transmitted attorney these offers settlement, a nd informed him that any accept- ances will not be a reeable to the German Agent if one of the offers is rejected." The records of the Comm on show that on October 1, 1925 attorney accepted German Agent' offer as well as in four other "Esmeralda submitted to thi Comm a result of which an award cases and on upon an ag was rendered thereafter, this claim was reed statement of facts, as on behalf of the claimant on October 30, 1925, as already tated. The attorney' statement in his affidavit that "these other [civilian prisoners pared accurate war] $3,5C since 10 cases with were interest , as the attorney settled offered for Mr. is aware $600 with Bobart," awards were interest is not s made, com- trictly based upon the offers of the German Agent in the Durfee case for $2,500, in the Byrd Williams case case $1,850, for $1,000, in the and Rogers Smith case case $990, for $950, in the as com- pared to $3,500 in the instant case. mtL_ -L A-, -, --- ~1 * ____ --- 1r - * n~~ *U~t~r*T~t~~TLY 'S 'u-*1 3 flrmlr r r *u *u r u nfl g*n 3~ r5 rur *I Cn fr in rn u nr fu v L1., L ,LL,., n n n i-rn r~n n n r L1 -.. .-. .-. -- -r -' S -. ST J- 'll'--1 422 tionable. He knew the work had performed for him. It was then fresh in his mind, and not one word was uttered by reflecting upon my handling of his case or the amount of compensation I was to receive. It is unnecessary to review in detail the subsequent correspondence between attorney legislation and pending claimant, Congress which with relates respect generally payment awards. The correspondence con sists of eight letters from the attor- ney and two letters from the claimant the claimant 's letter of Octo- ber 8, 1926, not having been submitted by the attorney. On April 7. 1928 , subsequent to the enactment of the "Settlement of War Claims Act of 1928" attorney wrote claimant instructing obtaining him payment requirement award. passing, complied is proper with note that this letter made no mention American Commissioner's notice of April 2, which had addressed( been received to the claimant the attorney on in care of the attorney, April The claimant did not return the form and tion on April blank. of application the attorney S. The claimant sent , however to the attorney, as requested, he claimant, another applica- mailed application direct Trea from sury Sd Trea Depart ment sury L/ andl Department on May a, a check , 1928 received in payment , direct award. Thereafter, cate with claimant apparently the attorney to made arrange no attempt payment of to common uni- appears from the American Commissioner', letter dated January 1929, first above quoted, the for the claimant to pay him. attorney likewise "waited until July It is unnecessary to consider in detail the negotiations which sub- sequently took place between the attorney and claimant (each repre- sented by counsel) in this case. for an amicable adjustment Counsel for the claimant states that of the attorney he offered $750 in a. *u- I I. a Lu C n ,, n I .. 'r'~ !Y*'~~ 423 benefits arising therefrom. view of the size of the award which was rendered this case the claimant no reason complain about the outcome of his case. The services which a award by this Commission attorney alleges were rei was made, in attempting ndered after bring about legislation for the payment of the award and in the negotiations for payment of hi cannot charged against claimant fixing the because such services were performed as much in interest of the attorney as of the claimant. The record in this case shows that it comes within the application of the statement of the American Commissioner in tive and Jurisdictional Decision of September , 1928, Adnui n istra- as follow * the Government of the United States has taken the full responsibility and control in the presentation of all claims before this Commission. Attorney for claimants have not been permitted to appear before the Commission they have been allowed to file briefs only with the approval and endorsement of the American Agent. Government Treaty of Peace with Germany the right of not only recovery, established where such right exists, but it has also established a governmental organization for the presentation of these claims organization thus has borne established all the ex has taken penses of such full control organization, over the presentation claims and performed the major part of the work involved in their prosecution, and in m: duction of claimants' also to as! In un 37331 cases f evidence, ai attorneys as has done everything not infrequent li connected therewith, rit has been obliged except to instruct to what evidence was needed to establish the claim sist them in procuring it. dertaking decide isputed question valuation well as in ascertainin dered, the American contentions either of assisted in reaching the character and extent of the services Commissioner h the claimant or his conclu not the MUJIS relied wholly attorney,! records of upon has ren- the been case file with the Commission and he has concluded, after an examination 424 UNIVERSITY OF FLORIDA 3 1262 08484 1880 S- - :.i eral Administrative and Jurisdictional Decision of September 28: kbl& jjI v f I j..11 rt< f wf 4>*f jj 1028 and ater careu examnaton an u cons eraton II blle. ;:k4': 'i"~ ,rr; ": :,: : :,: ,:,,: i :,:: ; "ii .:i. i, i , 12:-5: : x: E, ,r, :: furnished, and this records proceeding Commission attorney. pertin questions involved, and after due, deliberation thereon, The Amierican Commissioner decides and fixes as t formation claimant paid by the claimant; Charles he Bobart, y and thie ^ ent to the fi ... . reasonable attorney; Lewis Arthur McGowan, in this case; the sum of Seven Hundred and Fifty Dollars ($750.00), in addition to the disbursement expended: by the attorney amounting to Eighty-Five Dollars ($85.00), the said fee to be paid by the claimant and received by the attorney as full compensation services rendered :in prosecution and col- election of this claim, as defined by Section 9 of the Settlement of War Claims Act of 1928 " Done at Washington, I). C., this 28th CHAnDLER day of June, 1930. . ANDERSON, American Commissioner, Mixed Claims Commission, States and Germanzy. ~T4' .9:4 United : E" ~rJI |