
    Weber v. Shay & Cogan.
    
      Illegal contracts — Agreement by attorney to prevent indictment— Attorney cannot recover for services — Jury not to determine legal effect of acts.
    
    1. A contract by attorneys at law to render services-to prevent the finding of an indictment against one accused or suspected of crime is illegal and void without respect to the belief of such attorneys as to his guilt, and compensation stipulated to be paid for such services cannot be recovered.
    2. Such contract is illegal because of its corrupting tendency : and it should not be left to a jury to determine whether, in its execution, acts were done to contravene public morals or subvert the administration of justice.
    (Decided March 9, 1897.)
    Error to the Circuit Court of Warren county.
    Shay & Cogan brought suit against Weber in the court of common pleas alleging in their petition that “the defendant entered into a contract with plaintiffs by which it was agreed that they, the said Sháy & Cogan as attorneys at law, should protect the interests of the said Guy Weber and one William Anderson in certain criminal actions then and there threatened and suggested and pending in the eourt of common pleas of Hamilton county, Ohio, and in the United States circuit court within and for the sixth judicial circuit and southern district of Ohio, said actions so threatened and pending being certain actions which'were about to be brought by the United States of America against the said Guy Weber and the said William Anderson for alleged violations of the criminal laws of the United States, and an action against said Anderson then pending in the common pleas eourt of Hamilton county, Ohio, wherein said Anderson was indicted by the grand jury within and for the county of Hamilton, for the alleged crime of burglary, for which services the said defendant, Guy Weber, promised to pay to the said firm of Shay & Cogan, attorneys, the sum of 81,000.
    Plaintiffs say that “they performed all and singular their promises and obligations under said contract according to the letter and spirit thereof.”
    They also alleged that no part of said sum had been paid, and prayed judgment therefor.
    In his answer Weber admitted that the plaintiffs are co-partners and attorneys and counsellors at law, and denied all other allegations of the petition. To his answer he annexed numerous, interrogatories to which the plaintiffs filed answers. The material answers and interrogatories are as follows:
    Interrogatories:
    
      Seventh — What criminal actions were pending against defendant, Guy Weber, in courts mentioned at the time of alleged contract?
    
      Eighth — Were any of the criminal actions threatened and suggested against defendant at the time of the alleged contract ever begun?
    
      Ninth — Were the services you were to perform „ under said alleged contract to be performed before said criminal actions were begun, or after?
    
      Tenth — What particular services were you to perform in relation to said alleged actions?
    
      Eleventh — What services have you performed, under said the alleged contract?
    
      Twelfth — Were you by said alleged agreement to defend defendant against indictments that might thereafter be found, or were you to prevent the finding of indictments?
    
      Answers:
    
      Seventh — If we understand the question properly, that is, actions based upon a written charge,
    I would say they were none.
    
      Eighth — Yes, sir.
    
      Ninth — Perhaps both.
    
      Tenth — -We were to protect Weber from a public scandal; protect him, if possible, from being indicted by the United States or state authorities, and defend James Anderson.
    
      Eleventh — We would say in answer to interrogatory eleven, from the advice and consultation had with Mr. Brewster, the duly authorized agent of Guy Weber, the defendant herein, and the personal conversations and advice pertaining to the many and various questions involved, there was pending against said Anderson, seven distinctive charges of burglary alleged to have been committed by him together with the commission of a burglary at Lebanon, Warren county, Ohio, for which he has since been indicted, and concerning which and the alleged stolen stamps, alleged to have been in custody of said Guy Weber, the result of the commission of said burglary, procured by said Guy Weber, with guilty knowledge, there was contemplated a charge against said-Guy Weber, which charge or indictment, if it has been as yet founded by indictment, we are unable to state, because under the rules of procedure in the United States court, no indictment is made public until the process thereon has been made public, which has as yet, not occurred.
    - Twelfth — We were to defend James Anderson, and to assist in preparing the necessary testimony to prevent the finding of an indictment, we were to prevent, as much as our influence and power could, any public disgrace or scandal attaching to Weber; to protect the good name of his wife and children, and in fact, perform any service which would protect his property, wife, children, etc.
    On the trial evidence was offered by the plaintiffs tending to sustain all the allegations of their petition. Their evidence as to the character of the services to be performed by them under the contract was in application of their answers to interrogatories and consistent therewith. Some of it tended to show that the plaintiffs knew — at least believed — that Weber had been guilty of an offense against the postal laws of the United States.
    At the conclusion of the evidence counsel for the defendant requested the court to give the jury the following eharg’e: “If plaintiffs had knowledge that a person was guilty of felony, they had no right thereafter to use any means to prevent the indictment of such person for such felony, and any effort to do so would be unlawful on their part, and they could not recover on a contract to do so.”
    Which charge the court refused to give, to which refusal defendant then and there excepted.
    On this particular subject the court instructed the jury as follows:
    The peace and safety of society demand that proper investigations shall be made of all alleged offenses against the laws of the state, or of the United States. The lives and property of the citizens can be made secure only by faithful enforcement of the criminal laws. Any contract therefore, which has for its object the obstruction or perversion of the cause of public justice is illegal and void.
    
      If, therefore, you shall find that plaintiffs were employed by defendant, as claimed by them, yet if you shall further find that under their contract they were to do, or attempt to do any act which would prevent or have a tendency to prevent a full and fair inquiry by a grand jury into any offenses alleged to have been committed by said defendant or said Anderson, then said contract was illegal and void, and being an entire contract, said plaintiffs cannot recover upon said contract for any services rendered by them.
    To illustrate — If the terms of the contract contemplated that they should prevent or endeavor .to prevent any witness or witnesses’from testifying before the grand jury; or that they should induce or endeavor to induce any witness to testify falsely before the grand jury, or conceal any facts within the knowledgeof such witness ; or that theyshould attempt to deceive or mislead the district attorney, or other prosecuting officer, or influence him to be remiss in the performance of his duties; or that they should in any way attempt to hinder, obstruct or impede the grand jury or the prosecuting officer in the investigation of any charges against said defendant or said Anderson, then the contract was illegal, and they cannot recover.
    But a person accused or suspected of a crime may employ counsel to protect his rights and interests and to act in his defense, and he is not required to wait until he is-actually indicted before employing counsel. And where the contract of employment does not contemplate or require the doing by counsel, of any act or acts calculated to hinder or prevent the due enforcement of the laws, and where counsel in the performance of such contract do not interfere or attempt to interfere with or impede the course of public justice, the contract is valid and may be enforced.
    If plaintiffs were, in fact, employed by Brewster, as his agent to protect the rights and interests of said defendant or ‘said Anderson in relation to any threatened or probable criminal prosecutions against either of them, they might lawfully, under such employment, watch the course of proceedings to ascertain what witnesses were brought, or likely to be brought, before the grand jury ; they might institute inquiries to find out the character of such witnesses, and what they knew, or claimed to know, and the purposes and motives of persons found to be taking an active part in the prosecution. (And if they found that such witnesses or parties instigating the prosecution were persons of notoriously bad character, and were pressing the prosecution to gratify motives of personal spite or malice, or for any other evil purpose, they might without being guilty of wrong doing, call the attention of the district attorney or other prosecuting officer, to the character or motives of such witnesses or persons, and disclose to such officer any facts which had come to their knowledge in relation to the matter, although the tendency or effect of the information thus given might be to prevent the finding of an indictment.) But they must act in perfect good faith, and must not have attempted in any manner to mislead the prosecuting officer, or- to induce him to neglect or omit the performance of any duty. And if you find that during the course of these investigations the plaintiffs became satisfied in their own minds that the defendant or Anderson was in fact guilty of violation of the criminal law, you may take this fact into consideration in connection with plaintiffs’ subsequent conduct, in determining whether said plaintiffs did or did not act in good faith m whatever they may have done under their employment that might have a tendency to prevent the finding of an indictment.
    And if, after careful weighing and considering all the evidence in the - case, bearing upon the nature of the services which said plaintiffs were to .perform under the contract of employment, you find that they were to do, or attempt to do any act which would prevent a full and fair investigation by the grand jury of any offenses alleged to have been committed by defendant or Anderson or to do or attempt to do any act to obstruct the course of public justice, then your verdict will be for the defendant.
    But if you find that their contract of employment did not contemplate or require them to do any act or acts intended to prevent such full and fair investigation by the grand jury, and that in the performance of said contract, they did not do or attempt to do any act calculated or intended to prevent the due enforcement of the laws, and that in whatever they may have done looking toward preventing the finding of an indictment, they were guilty of no improper conduct and acted in good faith, then the contract was not illegal and they may recover.
    The jury returned a verdict in favor of the plaintiffs for the amount claimed. The defendant moved for a new trial upon the grounds, among others, that the verdict was against' the weight of the evidence, that the verdict was contrary to law, and for errors of law occurring at the trial to which the defendant excepted. The motion was overruled and judgment followed the verdict. This verdict was affirmed by the circuit' court.
    
      Frank Brandon; Geo. A. Burr and Clark <& Dechant, for plaintiff in error.
    
      Runyan <& Stanley, for defendants in error.
   Shauck, J.

In view of the verdict, the overruling of the motion for a new trial, and the judgment of affirmance in the circuit court, the making of the contract is to be regarded as established. And although the defense of Anderson on the trial of indictments found against him would have been the subject of a valid contract if not connected with any other agreement, the jury were properly instructed that the contract was entire and there could be no recovery if the services to be rendered in behalf of Weber were illegal. Whether they were illegal or not is, therefore, the only question for consideration here. Upon this subject it is said that the trial court erred in refusing to give the instruction requested and in overruling the motion for a new trial because the verdict was contrary to law.

It is obvious that the instruction requested was more favorable to Weber than that which the*court gave upon the same subject. According to the request, if the plaintiffs had knowledge of Weber’s guilt, the law gave to such knowledge the conclusive effect to defeat a recovery for services rendered to prevent the finding of .an indictment ag’ainst him. According to the instruction given, it had no conclusive effect, but might be considered by the jury, in connection with other evidence, in determining whether the plaintiffs had acted in good faith in what they did under their employment.

The considerations of public morals and policy-involved, and the authorities upon the subject, lead to the conclusion that the instruction requested was more favorable to the- plaintiffs than the law permits. The services in behalf of Weber were to be rendered for the purpose of influencing’ the action of grand juries whose proceedings are secret, and thus impede the usual course of justice and prevent the orderly inquiry into the alleged commission of an offense against the public. The contract differs from the ordinary illegal agreement to stifle a prosecution only in that the element of restitution is wholly absent, and the plaintiffs were prompted by hope of reward unmixed with any motive less base.

Public policy requires that all offenses against the law shall be punished and all contracts which tend to suppress legal investigations concerning them are immoral and void. Courts are charged with the duty of administering the law, and they should not lend their aid to the enforcement of any contract which looks to its subversion. This would seem obvious, and it has the sanction of more authorities than it is practicable to cite. Roll v. Raquet, 4 Ohio, 400 ; Hinesburgh v. Sumner, 9 Vt., 23 (annotated 31 Am. Dec., 599); Shaw v. Reed, 30 Me., 105; Ormerod v. Dearman, 100 Pa. St., 561 ; Arrington v. Sneed, 18 Tex., 135; Averbeck v. Hall, 14 Ky., 505; Crisup v. Grosslight, 79 Mich., 380; Tool Co. v. Norris, 2 Wall., 45; Barron v. Tucker, 53 Vt., 338 ; Ricketts v. Harvey, 106 Ind., 564.

It was not material whether the plaintiffs knew or believed that Weber was guilty or not. The inquiry into their knowledge or belief which the requested instruction contemplated would have been impracticable and irrelevant. Their belief in his innocence would not have made the contract valid. Schultz v. Culbertson, 46 Wis., 313.

Nor should it have been left to the jury to determine whether there had actually occurred the secret and corrupt practice which the contract encouraged. As said by Justice Field in Tool Company v. Norris, “the decision has not turned upon the question whether improper influences were contemplated or used, but upon the corrupting tendency of such agreement.

Judgment of circuit and common pleas courts reversed.  