Clean Hands ...

Rule Two of the federal Rules of Civil Procedure is seldom discussed anymore. Elegant in its simplicity, it starkly declares that thereafter there shall be one cause of action, a civil action. Prior to 1938, there had been two systems of justice, one in law and the other in equity. Rule Two did away with the need to plead your cause in one or the other.

Efficient as the new system is, the legal profession has lost something in the process. Law students no longer memorize the Twelve Maxims of Equity or even consider the principles of equity other than as simply another remedy. However, the principles of equity still show up on occasion. Perhaps the most common maxim applied in modern courts is the so-called clean hands doctrine which states that he who seeks relief in equity must come before the court with clean hands. What follows is a very good discussion of the clean hands doctrine from two rather obscure cases where it was applied:

“The maxim of equity that "[he] who comes into equity must do so with clean hands" dates back to the late eighteenth century when it was gleaned by a British barrister from a collection of cases in which plaintiffs had been denied relief on the basis of their inequitable conduct. While the doctrine might be considered relatively new in light of the long history of maxims of equity it is well embedded in American jurisprudence.

“The unclean hands doctrine is aimed at providing courts of equity with a shield from the potentially entangling misdeeds of the litigants in any given case. The Court invokes the doctrine when faced with a litigant whose acts threaten to tarnish the Court's good name. In effect, the Court refuses to consider requests for equitable relief in circumstances where the litigant's own acts offend the very sense of equity to which he appeals. As former Vice Chancellor Brown aptly put it,

“[T]he purpose of the clean hands maxim is to protect the public and the court against misuse by one who, because of his conduct, has forfeited his right to have the court consider his claims, regardless of their merit. “ 1

“Many courts have held that a civil claim for damages may be dismissed when the party asserting the claim is guilty of fraud or some other act of bad faith closely relating to the matter being asserted. The authority to dismiss a claim under these circumstances arises from the Court's fundamental authority to protect its own integrity and the integrity of the judicial process.

“The authority to dismiss a claim for the protection of the integrity of the court was thoroughly developed by courts of equity through the equitable maxim of clean hands. As stated in Mas v. Coca-Cola, 163 F.2d 505, 507-508 (4th Cir. 1947): The clean hands doctrine is one which the court applies, not for the protection of the parties, but for its own protection. Its basis was well stated by Professor Pomeroy (Equity Jurisprudence, 4th Ed., sec. 397) as follows: "It assumes that the suitor asking the aid of a court of equity has himself been guilty of conduct in violation of the fundamental conceptions of equity jurisprudence, and therefore refuses him all recognition and relief with reference to the subject-matter or transaction in question. It says that whenever a party, who, as actor seeks to set the judicial machinery in motion and obtain some remedy, has violated conscience, or good faith, or other equitable principle, in his prior conduct, then the doors of the court will be shut against him in limine; the court will refuse to interfere on his behalf, to acknowledge his right, or to award him any remedy."

“As the above quotation indicates, the clean hands maxim ("He who comes into equity must come with clean hands") is a discretionary defense signifying the chancellor's traditional authority to refuse to grant equitable relief to a petitioner with "unclean hands". Unclean hands results from fraud or other inequitable conduct by the petitioner which so closely relates to the claim being asserted that it would be improper to permit the petitioner to prosecute the claim in a court of equity.

“Until recently it was thought that the clean hands defense was available only in equitable actions, and that there was no comparable broad-based grounds for dismissing legal actions for damages. For example, in Carman v. Fox Film Corp., 269 F. 928 (2d Cir. 1920), reversing 258 F. 703 (S.D.N.Y.1919) and Carmen v. Fox Film Corp., 204 App.Div. 776, 198 N.Y.S. 766 (1923), the plaintiff was initially denied the right to sue in equity for an injunction and damages, but subsequently was allowed to recover a verdict at law for damages on the same claim. See also Dobbs, Handbook on the Law of Remedies, § 2.4 at p. 46 (1973).

“Court opinions and commentaries since the procedural merger of law and equity in 1938 have expressed the view that the clean hands doctrine embodies a general principle equally applicable to damage actions, and that rights not suited for protection at equity should not be protected at law.” 2

So, in summary, the Maxims of Equity are not only an inseparable part of our legal heritage but also substantive law as adopted through the Federal Rules of Civil Procedure. It might be wise for we modern readers of the law to go back and memorize these Maxims because you never know when, despite the “Jerry Spring Show” character of modern litigants, these Maxims might still raise their ancient heads from the bench and bite you where you sit down when you least expect it.

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1 NAKAHARA v. AMERICAN TRUST Case No. 15905. Court of Chancery,
New Castle County, Deleware.

2 BUCHANAN HOME AND AUTO SUPPLY CO., INC., v. FIRESTONE TIRE AND RUBBER COMPANY, 544 F.Supp. 242.