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California Gold Rush Journal

PART 2

CHAPTER THREE

San Francisco — July 1851

Consul Dillon at the French Consulate recommended an American attorney he had recent dealings with and whose work he found satisfactory. The young man was trying, like me, to establish a new practice in the nearly lawless city and Dillon assured me that he was not a hired gun for the mayor and his cronies.

I had flirted with the idea of trying to practice law in the city’s civil courts on my own, but on reflection thought it better to associate with an experienced lawyer given the destruction of the court house in the recent fire. I had been fortunate to secure an order to seize the replacement Chilean wine Teri’s ex-beau had ordered after the fire using her savings. I couldn’t count on another American judge accepting my pleadings as I had no legal degree or experience pleading cases in court. Many French lawyers had come to California to seek their fortune in gold, but none were qualified to practice law after going bust in the placers. American civil law was based on English common law principles and case law precedent, while French civil law was based on an outdated Napoleonic Code. Further, no legal education was available in the city other than to become apprentice to an American lawyer. As most French did not speak fluent English, even that option was out.

Thomas Hawthorne’s office was a cubby-hole off the second floor stairs of a newly rebuilt brick and mortar building on Commercial Street.

He answered my knock himself and proffered a well-manicured hand to shake. His hand was soft but his grip firm. He signaled me to take a seat on a well-used captain’s chair in front of his neat but nicked-up walnut desk that had seen better days. The only source of light other than a plain whale oil lamp on his desk was a window at his back.

Hawthorne was tall, suavely-dressed, sported a prominent Adam’s apple, an aristocratic nose and looked to be in his early thirties. He wore his dark hair fashionably long. His New York tailored suit seemed oddly out of place in this Spartan setting.

“How can I help you, Mr. Dubois,” he said after perusing my business card in French.

I explained how I would need a lawyer to effect the seizure of Chilean wine on behalf of my wife’s associate, Teri, whose ex-boyfriend had stolen her savings to restart his wine merchant’s business after the fire of May 3^rd. He raised his heavy black eyebrows in surprise when I handed him Judge Roberts’ order to confiscate the wine when it arrived until the merits of the matter could be resolved in court.

“How did you get the order of attachment,” he asked with a frown.

“I sweet talked the judge’s clerk to sign it and affix the judge’s seal,” I replied honestly.

“With a bribe?” He asked carefully gauging my demeanor.

I laughed to break the building tension. “The only inducement needed was to assure the lustful clerk he would get to meet the hot-blooded, vivacious and spurned señorita. While there, I arranged a date for the judge to marry me and my fiancé and assured him the señorita would be present as a witness and dressed to the nines.”

Hawthorne gave a visible sigh of relief at my explanation. “You need to know that I refuse to conduct business or trade favors for bribes.”

“I hoped as much. Consul Dillon assured me that you are honest and not part of the widespread corruption that has led the Committee of Vigilance to intercede in the detention and prosecution of the city’s criminal class.”

“Yes, and that sometimes presents problems in resolving cases. Biased judges and bribed jurors can skew just outcomes. That’s why I refuse to practice criminal law. I don’t admire either the judges or prosecutors who run the criminal courts or the extra-legal approach of the Committee.”

“Can a lawyer make a living just handling civil cases and avoiding the widespread corruption?” I asked.

“I hope so. If not, I’ll have to pack my bags and return to Connecticut. I can always practice with my father’s firm, but I’ve always wanted to make my own way in life. My father and I don’t get along all that well to tell the truth.”

“Is that what brought you to California?”

“Yes, I figured from what I read that there’d be a lot of newly rich men and successful merchants who’d need a competent lawyer to do contracts, probate and civil litigation. I wanted to escape the stuffy, “Old Boy” dog-eat-dog East Coast lawyer cliques where you have to coddle clients, join the right clubs and be socially acceptable to get and maintain clients.”

His explanation reminded me of my former boss in Paris and why I’d agreed to come to California to escape a similar legal environment. “Like your father’s practice?”

“Yes,” he sighed. “But I didn’t realize what a challenge San Francisco would be. Most of the legal work is defending criminals and con-men and most merchants do their own contracting and can’t afford to play Russian roulette with the notoriously unreliable and unpredictable court system. In Connecticut, you can move your case before an experienced judge of your choice and challenge a biased or self-interested judge, but not here.”

I explained my arrangement with the French Consulate to locate and deliver mail to French miners in the placers as I did recently to camps in the north along the forks of the Yuba River and my planned trip to the southern mines with my new assistant, Gino Lamberti. I outlined my business plan that included detective services to find missing persons, notarization and translation of legal documents from French to English for use in contracts, litigation, immigration, citizenship, inheritance, and dissolution of marriage cases. “When matters are contested or need legal intervention, I will need an American lawyer to assist me. Would association in these enterprises interest you?”

“Of course, I like the variety of situations you will be handling. I like new challenges,” he said without hesitation,

“Good. How’s your French?”

He choked briefly before muttering, “Well, ugh, of course I studied French in high school, but that was a long time ago and I’ve had no occasion to speak it. Is that going to be a problem?” He said nervously. It was apparent he wanted the work and it was time to set the terms of any association. “What do you usually charge clients? Do you work by the hour or the job?”

He hesitated before answering. “That depends on the case and the amount of time it will take. Like all practitioners, I request a retainer from new clients which guarantees at least partial payment. Once you commit to litigation, it’s not easy to withdraw even if you’re not being paid.”

I understood the desired retainer system where the client pays up front to secure the lawyer’s services and a commitment to handle the client’s legal needs. My boss in Paris worked that way. He paid me only a fraction of the hourly rate he demanded in his retainer to do his legal work. He was free to glad-hand, hobnob and dine with his clients and woo his mistress while I did the grunt work and ran his practice.

“I’m afraid I’m not in a position to pay retainers on cases. Like you, I’m trying to build a new practice from the ground up. What I have in mind is for us to work as associates or partners. We each record our time on the cases we work together and when we’re paid, we divide the proceeds proportionally based on the time each has put into the case.”

“As equals?” He squinted, giving me a dubious look.

“Yes. I worked as the chief clerk for a prominent notaire in Paris for several years. I prepared all the contracts for marriage, drafted all the property conveyances and petitions for succession by heirs in probate matters and a host of other civil matters. A French notary acts like your civil attorney in America. The only difference is he doesn’t litigate cases. If necessary, the notaire associates an avocat to try the matter before a magistrate. That’s the relationship I’m proposing for us.”

I paused in my spiel to gauge his reaction. While he sought to mask his reaction to my proposal, the uncontrolled bobbing of his Adam’s apple betrayed his unease.

“Let me give you an example how such an association would work. My wife’s business partner, Giselle, decided not to return to France with her husband after his wine business burned in the May 3^rd fire. I negotiated the terms of their separation and grounds for divorce. I prepared notarized declarations in English and French for submission to American and French courts. I persuaded the husband to declare he was abandoning his wife in California to facilitate her divorce here and gave him her notarized statement that she had refused him her bed because she no longer wanted kids. Thus, he would have grounds for a Church annulment of the marriage and be able to remarry if he chose.” I paused to let him grasp my ability to negotiate a settlement between warring parties.

He nodded his acquiescence and I continued. “As you can see, I have laid the groundwork for you to prepare a petition for an uncontested divorce here and to obtain a divorce decree. I will be paid for my time settling the case at the rate of $16 an hour and you will be paid the same amount for your time in preparing the petition and the court appearance before the court. The same is true for the time it takes to execute the attachment order on the shipment of Chilean wine in the other matter I mentioned.”

I watched him suck in his breath while he pondered my offer. I knew from Consul Dillon that he had demanded $25.00 an hour but settled for $20.00 in the hope of repeat business. As my rate was $16.00 an hour I was insisting on parity for payment of our work together. I hadn’t charged either of Manon’s partners for my legal work but that was my business. “Well?” I asked to force a response.

“I suppose I could do it for $16.00 an hour. I’m used to a much higher rate but I have the time,” he said reluctantly.

“Good. Let’s do these two cases together on a trial basis. If we’re both satisfied with the arrangement then we can tackle new ventures together. My wife runs a French food business on the long wharf where our brig, “The Eliza,” is docked. Why don’t you join us for dinner one evening this week. You’ll be able to meet both your new clients and enjoy a meal with us.”

The prospect of a home cooked meal and a chance to socialize with two new single women clients brought a smile to his previously dour visage. We shook hands on our agreement and made a date for dinner.