MAINTENANCE AND CHAMPERTY. In English law maintenance is the maintaining or assisting a party, with money or otherwise, to prosecute or defend an action in which the main tainer has no legitimate interest. The law allows a master to assist his servant, near relations to support each other, the charitable to assist the poor, and persons having an interest even contingent in the subject matter or principle involved in a suit to assist a party to it. Other maintenance is a criminal offence and a civil cause of action. In theory, even if the maintained action succeeds so that a party is assisted only to secure his legal due, the unsuccessful party can sue the maintainer if he can prove that he has suffered damage (Neville v. London Express Newspaper Ltd., 1919, A.C. 368), but this is seldom if ever possible since the damages and costs which he is compelled to pay flow from his own wrong and not from the maintenance. If the maintainer is to be rewarded by receiving some part of the subject matter of or some profit from the suit the bargain is the criminal offence of Champerty. (X.) United and champerty as defined by the common law are still generally criminal in the United States. The criminal aspect of maintenance and champerty has now little significance, but the concepts retain their vigour in rendering unethical the conduct of a particular attorney or illegal contracts between attorneys and clients concerning remuneration for serv ices rendered in the prosecuting of a suit. The charging of legal fees contingent upon success is technically champerty, but the strict definition has relaxed as the social necessity of such a practice has become increasingly apparent. The common law doctrines that made illegal all champertous agreements have consequently been greatly modified by judicial decision. A few States follow the so-called Massachusetts rule which makes illegal an agreement by an attorney that he shall receive a specific share in the proceeds of the suit but considers an agreement legal which merely provides for a larger fee in the event of success. The majority of States follow the rule that champerty of itself does not make the agreement illegal unless it is accom panied either by maintenance in the form of an agreement that the attorney will bear the expenses of the suit, or by a provision binding the client not to compromise or release the claim without the consent of the attorney. The fact that such rules consider the form and not the substance of the agreement has led to the mod em view held by a few States, namely that neither technical champerty nor maintenance invalidates the contract but its validity is to be determined by a consideration of whether the particular agreement induced the litigation and revealed an over reaching of the client by the attorney. Many States unfortunately have allowed an attorney whose agreement for fees is invalid because of champerty or maintenance to recover reasonable fees from his client, thus permitting him to charge any fees that he may desire in the first instance and in the unusual event of litigation assuring him no matter what the final outcome a reasonable compensation. The champertous character of an
agreement between attorney and client can be availed of only by the parties to it, and no defendant can successfully defend the claim against him by proving that the plaintiff is prosecuting it under a champertous agreement.
The ease with which the practices of champerty, maintenance and barratry or the stirring up of vexatious litigation have eluded both the criminal law and the restraining influence of doctrines rendering contracts between lawyers and clients illegal, has led in the large American cities to the practice of "ambulance chas ing." Unscrupulous attorneys eager to solicit business in negli gence cases employ runners who keep track of accidents with the aid of police, newspaper reporters, doctors, etc., and by appearing on the scene shortly after the accident manage to inveigle the victims into engaging them to prosecute their claims. Needless litigation over minor and often spurious injuries is thus aroused. In Minnesota by virtue of a statute which has since been declared unconstitutional (Davis v. Farmers' Co-op. Equity Co., 262 U.S 312 [1923]), attorneys sought to bring within the jurisdiction of Minnesota courts claims for injuries arising out of railroad trans portation which may have occurred a thousand or more miles from the place of trial merely on the ground that the railroad maintained a freight and passenger agent in the State although it operated no trackage within the State, nor was the plaintiff a resi dent of the State. Similar attempts have been made by other States to facilitate the trial of accident cases remote from the place of their occurrence so as to harass the defendent into a set tlement irrespective of the merits of the plaintiff's claim by the prospect of the costs that he would incur in bringing his witnesses to the place of trial. The seriousness of the evil of ambulance chasing is also attested to by recent investigations initiated by the bar and conducted by the courts of New York, Ohio and Wiscon sin into the practice in the hope of devising means for its correc tion. As a result of the investigation conducted by the supreme court of New York in 1928 in the city of New York disbarment proceedings and criminal prosecutions were begun against more than 7o New York lawyers. Though ambulance-chasing is in part the reaction of some of the legal profession to the unscrupulous methods of claim agents for defendant corporations in securing., releases from injured parties for nominal sums before the conse quences of the injury could be rationally ascertained, its sway can be attributed to the want of sufficiently high moral and intellectual standards for admission to the practice of law.