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The Duties and Liabilities of Attorneys


THE DUTIES AND LIABILITIES OF ATTORNEYS. The relation between the attorney and his client is one of trust and confidence, and fre quently involves affairs of the greatest importance and delicacy, so that the rules applicable to persons stand ing in fiduciary relations apply with added force to this relation.

Towards his client the attorney must observe the duty to keep from accepting or representing adverse in terests calculated to affect his loyalty to his principal. (Williams v. Reed, 3 Mason, 4o4.) So it is his duty, and one which he warrants that he will perform by accept ing the employment,—to exercise reasonable care and skill in the management of the trust confided to him. He is not held to the highest degree of skill or ability, and is not to be presumed infallible, nor bound to know all the law. (Montriou v. Jefferys, 2 C. & P. IQ.) And if he possesses the average degree of skill and learning in his profession current in that part of the country- in which he practices, and exercises such learning and skill with reasonable care and diligence, he will not be liable for mistakes made in the course of the employ ment. (Mechem on Agency', Secs. 824-5, citing Cooley on Torts, p. 649.) For negligence in respect to his duty to exercise rea sonable slcill and care, he is liable in damages to his client. And for negligence or palpable ignorance in re gard to the well-known and well-settled principles of law which affect the client's rights, whether as respe:A the bringing of a suit, the conduct of the trial, examina tion of title, preparation of contracts, and the like, the attorney becomes liable to his client for the injury done. (Mechem on Agency, Secs. 827-83o.) The measure of damage being the actual loss sustained as the natural, direct and proximate result of his negli gence or ignorance. (Pennington v. Yell, ii Ark. 212 ; Stevens v. Walker, 55 Ill. 151.) Towards third persons the attorney cannot become liable for the neglect of any duty he owes to his client. But he may not collude with his client to perpetrate a fraud upon a third person, and for such wrong doing he is liable. (Savings Bank v. Ward, Ioo U. S. 195.) He is held liable as other agents where he contracts in his own name. (Idem.) Thus, he is held liable for the fees of court officers for serving and filing writs and papers in an action. (Mechem on Agency, Sec. 838; citing Heath v. Bates, 49 Conn. 342, and other cases.) For his torts or wrongs towards third persons in his individual capacity he is liable, but for acts done in pur suance of his profession at the instance of the client, in good faith and without malice, he is not personally responsible, and this is true though the client has acted with malice or without probable cause. (Burnap v. Marsh, 13 Ill. 535; Peck v. Chouteau, 91 Mo. 140.) The attorney is liable if of his own malice, though appar ently acting for the client, he begins or carries on a ma licious prosecution. (Stockley v. Hornidge, 8 Car. & P. i6.) So, if the attorney, knowing that his client was acting maliciously and without probable cause, assists him in the issuing and service of process, he will be liable personally as well as the client. (Burnap v. Marsh, supra.) LIABILITY OF THE CLIENT TO THE ATTORNEY. The attorney, as other agents, is entitled to reimbursement for costs, charges, and ex penses which he has incurred in his client's behalf, and to be indemnified from the result of acts done for the client within the scope of his authority. (Clark v. Ran dall, 9 Wis. 135.) He is entitled to compensation, and may sue for same. (Stanton v. Embrey, 93 U. S. 548.) The compensation may be agreed upon and then the special contract governs; but in the absence of express contract the attorney is entitled to compensation meas ured according to the reasonable value of the services performed. And the question of what is a reasonable value is determined from a consideration of "the na ture of the controversy and the questions involved; the amount at issue; the skill and labor required; the re sponsibility imposed; the standing, experience, learn ing, reputation, tact, assiduity and integrity of the at torney; and the success achieved." (Mechem on Agency, Sec. 849, citing, Eggleston 'v. Boardman, 37 Mich; Bruce v. Dickey, 116 Ill. 527.) It is the right of the client to discharge the attorney at any time, and this though there has been a general retainer for which the attorney is bound to conduct the case from its beginning to its termination. (Tenney v. Berger, 93 N. Y. 524.) The client may by a special agreement bind himself to pay and employ the attor ney for a definite period, or for a certain case. In the absence of such agreement the dismissal of the attorney is no grounds for damages from the client. But it is held that the attorney cannot be discharged without cause until he is paid his fees and charges. (Ogden v. Devlin, 45 N. Y. Supt.. 631.)

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