Agreements of this character, whether relating to the services of attorneys or others, are not binding on the Court, are contrary to public policy and to the policy of the Bankruptcy Act. See, General Orders 40, 42 and 44; Albers v. Dickinson, 8 Cir., 1942, 127 F.2d 957, 961; [cited with approval by the Court of Appeals for the Ninth Circuit in Beecher v. Leavenworth State Bank, 9 Cir., 1950, 184 F.2d 498, 501]; Weil v. Neary, 1929, 278 U.S. 160, 172-174, 49 S.Ct. 144, 73 L.Ed. 243; Crutcher v. Logan, 5 Cir., 1939, 102 F.2d 612; Cox v. Elliott, 8 Cir., 1941, 122 F.2d 851. In interpreting the Bankruptcy Act, courts have rejected repeatedly the contention that, in the absence of specific prohibitions in the Bankruptcy Act, the bankruptcy court, in the exercise of equitable powers, may allow compensation in extraordinary cases.

This sentiment did not originate with the current Bankruptcy Code, however, as many decisions interpreting its precursor, the Bankruptcy Act, similarly limited fee awards for creditors' attorneys. For example, Cox v. Elliott sought to determine "whether under the Bankruptcy Act ... attorneys for creditors, not employed by the trustee nor authorized by the court, may be allowed fees to be paid out of the estate for services which benefit the creditors but do not augment the funds in the hands of the trustee."Cox v. Elliott (In re Calhoun Beach Club Holding Co.) , 122 F.2d 851 (8th Cir. 1941). Although Cox does not expressly implicate the common fund doctrine, it nonetheless addresses a court's equitable powers and sheds light on the concerns later raised by Fesco with paying a creditor's attorney from estate assets:

E.g., In re Peerless Mfg. Co., 523 F.2d 110 (7th Cir. 1975); In re Joslyn, 224 F.2d 223 (7th Cir. 1955); Cox v. Elliott, 122 F.2d 851 (8th Cir. 1941); In re L.E. Elliott Brokerage Co., 48 F. Supp. 144 (D.Kan. 1942). These were not Chapter 11 cases, but it is not suggested that that is a relevant distinction.

Were this not the law then "courts of bankruptcy would be confronted in many instances with numerous claims for compensation for `voluntary' assistance." Cox v. Elliott, 122 F.2d 851, 852 (8th Cir. 1941). The creditors argue that their claim, however, falls within one or both of two exceptions to the general proposition.

Attorneys may collect their fees from the bankrupt estate only as specifically provided by the Act. Levin v. Barker, 8 Cir., 122 F.2d 969, 973; Cox v. Elliott, 8 Cir., 122 F.2d 851, 852. The Act does not provide that attorneys for non-petitioning creditors may recover from the estate for the services rendered by appellants.

Apparently the established rule in several circuits is that under ordinary circumstances a creditor cannot receive any compensation whatsoever unless he has such authorization. In re Eureka Upholstering Co., 2 Cir., 48 F.2d 95, 96; In re Progress Lektro Shave Corporation, 2 Cir., 117 F.2d 602; Cox v. Elliott, 8 Cir., 122 F.2d 851, 852; Cf. Steere v. Baldwin Locomotive Works, 3 Cir., 98 F.2d 889, 891.         The reason for the rule is that usually the trustee and his counsel, each of whom has an official appointment, are the proper persons to determine whether a claim is worth prosecuting and to act in the light of their determination.