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

UNIV. OF- FL UI.




U.S. DEPOmfTORY


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THE AMERICAN COMMISSIONER

MIXED CLAIMS COMMISSION

UNITED STATES AND GERMANY


DECISION NO. 2
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. 273


Bertha V. Trumnbull, Priscilla Trwmbull Gil, Claimants
Edward K. Nicholson, Attorney


CHANDLER P. ANDERSON,
American Commissioner

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MEBNT PRINTING OPrICBI :


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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. 2
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. 273


Bertha V. Trumbull, Priscilla Trumbull Gill, Claimants
Edward K. Nicholson, Attorney


The above named claimants have duly filed with the American
Commissioner a written request that he fix a reasonable fee to be paid
by each of them to their attorney, Edward K. Nicholson, of Bridge-
port, Connecticut, as compensation for whatever services have been
rendered by the said attorney on behalf of and with the authority
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".
The claimants have objected to the amount of the fee asked by the
attorney on the ground that it is excessive, and the attorney has been
notified of the filing by the claimants of this request that a reasonable
fee be fixed, and tie attorney, in response to a request by the Ameri-
can Commissioner, has filed with him an affidavit, giving the infor-
mation which the attorney desires to have considered by the Com-
missioner as showing the reasonableness of the fee asked, which
18600-28 (27)








information has been brought to the attention of the claimants, and
the claimant Priscilla Trumbull Gill has filed a written reply thereto,
a copy of which has been transmitted to the attorney. :
The amount of the fee asked by the attorney as compensation for
his services in this matter is fifteen per cent of the amount of the
awards rendered by this Commission on account of the death, through
the sinking of the "Lusitania ", of the late Isaac B. Trumbull, the
husband and father of the claimants, respectively, which awards are
for $50,000 to the widow, and $25,000 to the daughter, with interest
thereon at the rate of five per cent from November 1, 1923, until
paid, fifteen per cent of which awards as computed by the attorney
amounts to approximately $9,213.54 as to the widow's award, and
$4,606.77 as to the daughter's award, the total fee asked by the
attorney amounting, accordingly, to $13,820.31.
As to the authority of the attorney to act as the attorney for
these claimants, the record raises an interesting question as to the
date and terms of his employment as their attorney.
The attorney states in his affidavit filed in this proceeding that
"no written authorization of any kind was ever given, although
each step taken was under the authorization of the said Alexander
H. Trumbull [the Administrator of the Estate of Isaac B. Trumbull]
and with the knowledge of the said Bertha V. Trumbull and the
said Priscilla Trumbull", and, further, "no agreement was ever
made by me with either Alexander H. Trumbull, Bertha V. Trum-
bull, nor Priscilla Trumbull, as to the amount of compensation to
be paid ".
Whatever authority the said attorney had to act as the attorney
for these claimants is disclosed and defined by the following facts:
The late Isaac B. Trumbull, the husband and father of the respect-
ive claimants, was the Treasurer of the Connecticut Electric Manu-
facturing Company of Bridgeport, and also of the Trumbull Motor
Car Company of Bridgeport, up to the time of his death, which
companies had been represented by the said attorney as General
Counsel for several years prior thereto. Mr. Alexander H. Trumbull,
the brother of the late Isaac B. T;umbull, was the president of the
Connecticut Electric Manufacturing Company, and upon the death
of his brother sent for the said attorney and arranged to have him
make application for the appointment of the said Alexander H.








Trumbull as the Administrator of the Estate of his brother, which
was done.
In connection with the settlement of the said Estate, the question
arose as to the claim arising out of the death of Isaac B. Trumbull,
and the attorney was instructed by the said Administrator "to take
all necessary steps to recover any possible damages arising from
the drowning of the said Isaac B. Trumbull ".
In February, 1916, a claim was filed with the Secretary of State,
setting forth the facts on which it was based, in accordance with a
circular notice issued by the Department of State.
This claim apparently was presented on behalf of the widow and
daughter of the late Isaac B. Trumbull for their proportionate share
of the amount of any indemnity paid by the German Government
because of the destruction of lives on the "Lusitania". At that
time there was some expectation that Germany would pay to the
United States Government a lump sum as indemnity for the dam-
ages resulting from the sinking of the "Lusitania", to be dis-
tributed by the United States Government among those entitled to
participation. This was not the claim subsequently presented to
the Mixed Claims Commission on which its awards were made to
these claimants.
This claim was presented in the form of an affidavit, which is now
in the files of this Commission, sworn to by Bertha V. Trumbull on
January 27, 1916, before Edward K. Nicholson, notary public. In
taking this affidavit, the said notary public, in compliance with the
Regulations of the Department of State, governing the presentation
of international claims, certified over his signature and seal that I
am neither the agent nor attorney of the said Bertha V. Trumbull
or the said Priscilla Trumbull, nor of any other person who might or
may have any interest in the same ".
The name of the notary being the same as that of the attorney in
this case, this certificate has been called to his attention by the Ameri-
can Commissioner, and he has admitted that he was the notary public
who certified as aforesaid in the verification of said affidavit.
In August of the same year, 1916, the attorney went to New York
on this matter and consulted with a firm of lawyers there with ref-
erence to the participation of these claimants in some contemplated
litigation brought against the Cunard Steamship Company, but no






30

agreement was ever entered into with them nor was anything ever
done by them for these claimants.'
In December, 1918, the attorney consulted a Washington lawyer,
who advised him to file the claim in the name of the Administrator.
The attorney accordingly wrote to him, giving him full information,
but whether or not the claim was ever filed he does not know. In
January of the following year, 1919, the attorney had some corre-
spondence with another Washington lawyer in regard to the prepa-
ration and presentation of this claim, but nothing was done with him
about this.
On May 21, 1920, the Department of State wrote to the attorney
with reference to the claim filed by Mrs. Bertha V. Trumbull, as
aforesaid, in 1916, inclosing the Department's regulation printed
forms to be filled out, and calling for certain documentary evidence to
be filed, which forms were completed and filed, and the evidence
requested supplied by this attorney.
In November, 1922, the Department notified the attorney of the
signing of the agreement with the German Government for the estab-
lishment of the Mixed Claims Commission between the United States
and Germany, and indicated the requirements for the petition to be
presented to that Commission. The attorney adds that a duplicate
of this letter was sent to Mrs. Bertha V. Trumbull, who delivered
it to him. On December 30, 1922, the attorney filed with the Secre-
tary of State an application for the support of the claims of Bertha
V. Trumbull and Priscilla E. Trumbull, accompanied by their birth
certificates showing their American nationality, and a certificate of
the appointment of Bertha V. Trumbull as guardian for Priscilla E.
Trumbull, the proceedings for which had been taken by this attorney,
together with a statement of the earning capacity of. the late Isaac
B. Trumbull and his birth certificate showing his American nation-
ality, -together with an affidavit of Alexander H. Trumbull of his
appointment as Administrator of the Estate of Isaac B. Trumbull,
and a certified copy of his appointment as such Administrator. At
the same time the attorney filed a similar application by Bertha V.
Trumbull as guardian of Priscill. E. Trumbull asking for the sup-
port by the State Department of the presentation of her claim. The
records of this Commission show that the attorney also filed at the
same time, although he does not mention it in his affidavit, a similar








application by Alexander H. Trumbull as Administrator of the
Estate of Isaac B. Trumbull presenting this claim on behalf of that
estate.
All of these applications were filed on printed forms supplied by
the Department of State, with blanks to be filled out by the claim-
ants in accordance with the detailed instructions contained in these
forms.
These three forms were signed and sworn to by the respective
claimants, and in each case the verification by the claimant was
made before Edward K. Nicholson, notary public, who in each case
certified over his signature and seal, as required by the Regulations
of the Department of State, that "I am not the agent or attorney
of any person having an interest in such claim." These certificates,
as in the case of the similar certificate in the affidavit of January,
1916, have been called to the attention of the attorney, and he admits
.that here again he was the notary public who signed these certifi-
cates certifying that he was not the, agent or attorney of any person
having an interest in these claims.
It is evident from the foregoing that the relationship of attorney
and client had not arisen between this attorney and these claim-
ants up to the date of these affidavits, December 29, 1922, and,
accordingly, that he is not entitled to have included in the services
for which he is now asking compensation as the attorney or agent
for these claimants any services rendered by him on their behalf
prior to that date.
Under the rulings made by this Commission (See "Opinion in
the Lusitania Cases announced November 1, 1923), the Estate of
the late Isaac B. Trumbull had no claim against Germany under the
Treaty of Berlin on account of his death, and has no interest in the
awards made by this Commission in favor of the widow and daughter
of the late Isaac B. Trumbull. The American Commissioner accord-
ingly is not concerned with any services rendered by this attorney for
the Administrator of that Estate, and cannot take such services into
consideration in fixing his fee for services rendered on behalf of
the claimants herein.
The claimant Priscilla Trumbull Gill, in her letter filed in reply to
the attorney's affidavit in this proceeding, states that so far as she
knows the attorney's affidavit is correct, although neither Mrs. Ber-





32

tha V. Trumbull nor myself have ever had direct dealings with Mr.
Nicholson, such dealings having been made through Mr. Alexander
H. Trumbull, Administrator of the late Isaac B. Trumbull's Estate ",
She adds, "Mr. Nicholson advised us through Mr. Alexander Trum-
bull that he considered fifteen per cent of the amount of the award
a reasonable fee. We informed Mr. Nicholson that he would receive
his fee as soon as the Mixed Claims Commission had determined what
that fee should be. Two days after Mr. Nicholson made his demand .
for payment, papers were served on Mrs. Bertha V. Trumbull and
myself, attaching our home and informing us that we were being
sued by Mr. Nicholson for twenty-five thousand dollars for unpaid
services"
It is evident from the facts disclosed by the record in this case that
the claimants never directly authorized this attorney to act for them
in the prosecution of this claim, and that the only direct authorization
he ever received in connection with the matter was the oral instruc-
tion given him by Alexander H. Trumbull, the Administrator of the
Estate of Isaac B. Trumbull, who was the President of the company
for which this attorney was General Counsel, and of which the de-
ceased was the Treasurer, which instruction was "to take all neces-
sary steps to recover any possible damages arising from the drowning
of said Isaac B. Trumbull ". Nevertheless, it appears that these
claimants have been kept informed of the steps taken by the said
attorney in the proceedings before this Commission since their claim
was filed with this Commission in December, 1922, and inasmuch as
they have sanctioned his action as their attorney by acquiescence
therein and by their acceptance of the benefits arising therefrom, he
is entitled to compensation for the services thus rendered on their
behalf.
Although the record shows that no written contingent fee agree-
ment was entered into between the claimants and the attorney, the
Commissioner is of the opinion that the circumstances of the case
and the attorney's professional relationship of general counsel to
the company, of which the decedent was formerly the Treasurer and
the decedent's Administrator and bother is the President, justify a
finding that his services were rendered to the claimants on the tacit
understanding that compensation therefore was contingent upon the
allowance of the claim and was to be paid out of the proceeds of the








award. On this basis, as stated in the Administrative and Juris-
dictional Decision of September 28, 1928, in these proceedings, the
attorney is justified in charging a somewhat larger fee than would be
charged for the same services merely on the quantum meruit basis.
It remains to consider what services were rendered by this attorney
subsequent to December 29, 1922, of the character defined in Section
9 of the Act under consideration, for which he is entitled to ask
compensation from these claimants.
Evidently the proof originally submitted in support of this claim
was considered inadequate by the Agent of the United States before
this Commission because, as appears from the attorney's affidavit and
from the records of the Commission, the American Agency wrote
to him on June 14, and August 27, 1923, asking for further evidence
proving the American nationality of Isaac B. Trumbull and of the
claimant at the time of his death, and also proving that he sailed on
the Lusitania" and lost his life through her destruction; also prov-
ing his earning capacity and physical condition at the time of his
death, and the amount contributed by him to the support of the
claimants, as well as the amount of life and accident insurance carried
by him, with the names of the beneficiaries thereof. The attorney
states that the information requested was furnished by him in affi-
davits prepared and secured by him from persons having knowledge
of the facts.
It is also stated by the attorney in his affidavit that no further
information was ever asked by the Department".
It further appears from the attorney's affidavit that during the
summer of 1926 he conferred with two members of Congress from
Connecticut as to the possibility of expediting the payment of the
awards.
The only further service rendered by him as stated in his affidavit
was to fill in the blanks in the printed form of application issued by
the Treasury Department to be filed by claimants for the payment
of the awards. This service, as appears from the forms filed, con-
sisted of filling 'in the docket number of the claim, the name of
the claimant, an affirmative or negative answer as to whether any
part of the award had been paid through other channels, and whether
the claimant was entitled to a share in any other awards, and, finally,
the address to which the check in payment of the award was to be








mailed, all of which is the subject of detailed instructions printed in
the application form.
The said attorney further states that he has carried on a large
amount of correspondence and has had many conferences with Mr.
Alexander H. Trumbull, the Administrator as aforesaid, and others,
"all of which ", he says, "are too numerous to detail ", and it does
not appear what bearing or value they had in relation to the prose-
cution of the particular claims under consideration.
It further appears from the records of this Commission that in the
proceedings before this Commission this attorney has not filed any
brief with the American Agency as to the basis upon which damages
should be awarded by this Commission under the Treaty of Berlin
in death cases resulting from the sinking of the Lusitania ". No
brief on any other question of law or fact involved in these claims was
submitted by the attorney.
As to disbursements and expenses incurred by the attorney on
account of these claims, he states in his affidavit that he had kept no
record of them, and he makes no separate claim for them on the under-
standing that they would be covered by his fee for services. It is a
very general understanding and practice of the legal profession that
the ordinary expenses of maintaining an office are covered by legal
service charges, and that a separate charge is not made for them.
This attorney seems to recognize this in his further statement that
"naturally, clerical assistance has been taken care of by my secre-
tary and stenographers in the ordinary course of business, and no
charge has been made therefore ".
The fact that the attorney makes no claim for disbursements and
expenses in addition to his fee for services is given due weight by the
American Commissioner in fixing a reasonable fee for his services.
Now, therefore, in the circumstances above set forth, and in view of
the considerations stated in the general Jurisdictional and Adminis-
trative Decision rendered by the American Commissioner under date
of September 28, 1928, and after careful examination and full con-
sideration of the information furnished in this proceeding by the
attorney aforesaid and by the claimants, and of the information
pertinent to the questions involved in this case on file in the records of
this Commission, and after due deliberation thereon,








The American Commissioner decides and fixes the amount of three
thousand two hundred dollars ($3,200) as the reasonable fee to be
paid by the claimant Bertha V. Trumbull, and the amount of one
thousand six hundred dollars ($1,600) as the reasonable fee to be paid
by the claimant Priscilla Trumbull Gill, to the said attorney, Edward
K. Nicholson, in full compensation for all services rendered by him as
aforesaid, as defined in Section 9 of the Settlement of War Claims
Act of 1928 ".
Done at Washington, D. C., this 22nd day of October, 1928.
CHANDLER P. ANDERSON,
American Commissioner,
Mixed Claims Commission,
United States and Germany.
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