In re Dunn

• Decision Date: 14 May 1912
• Citation: 205 N.Y. 398,98 N.E. 914
• Parties: In re DUNN et al.
• Court: New York Court of Appeals Court of Appeals

205 N.Y. 398

98 N.E. 914

In re DUNN et al.

Court of Appeals of New York.

May 14, 1912.

Appeal from Supreme Court, Appellate Division, Third Department.

Application by George W. Dunn and others, as receivers, to substitute another attorney in a pending case in the place and stead of Edgar T. Brackett. From an order of substitution and requiring Brackett to turn over all the pleadings and papers in the case (128 App. Div. 932,113 N. Y. Supp. 1133), affirmed by the Appellate Division (140 App. Div. 944,125 N. Y. Supp. 1118), Brackett appeals. Modified and affirmed.

Edgar T. Brackett, of Saratoga, for appellant.

George B. Curtiss, of Binghamton, for respondents.

HISCOCK, J.

At some time one Hebert, as administratrix, brought an action against the Hudson River Electric Company to recover lamages for the alleged negligent killing of her husband. The appellant Brackett appeared as attorney for the defendant in said action. It was tried and a verdict recovered by the plaintiff which thereafter was set aside and a new trial granted by an order which on appeal was affirmed by the Appellate Division.

While the action was in the condition left by said last-mentioned order, an order was made in the Circuit Court of the United States, which, after reciting that said defenant and other allied companies respectively were being mismanaged and were insolvent appointed above-named respondents receivers of said defendant and of all of its property with directions to take possession thereof and manage the same, and commanding the defendant and all of its officers and agents and employés to deliver up to said receivers possession of all of said property and to refrain from interfering with the possession by said receivers of said property or with the discharge of their duties as such. It is assumed that said order became effective and that said receivers took possession of such property and entered on the complete and exclusive management of the affairs of said corporation.

[1] The relations between appellant and said receivers were or became unfriendly. While it does not appear what may have been the original cause of this, it is sufficiently evident that the feeling of antagonism was both pronounced and reciprocal. Under these circumstances the appellant notified respondents of his unwillingness to continue to act as attorney in the above-mentioned action and requested them to substitute other counsel in his place and provide for payment for his services already rendered. The receivers disclaimed ability to do the latter, but insisted that appellant continue to act as counsel in the case, expressing their ability and willingness to pay him for such services as might be thereafter rendered. The attempt was made to solve the disagreement and situation thus precipitated by the order already referred to whereby other counsel were substituted in place of appellant, and he was required without payment of compensation thus far earned and without preservation of any lien thereon to deliver possession to such new counsel of the papers in the action, and the question is presented here whether he could thus be deprived of his lien.

[2] We all seem to be in accord concerning the general principles which govern the substitution of attorneys and the preservation or loss of a lien by the attorney who is displaced. I accept the statement of these principles made by the chief judge in his opinion when he says: ‘The present practice seems now well settled that the courts will not enforce a substitution of attorneys where the first attorney is without fault, unless the amount due the attorney for his services and expenditures is either paid or secured. At the same time it is equally well settled that, if the attorney has refused, without just cause, to proceed with the prosecution of the case, a client has the right to the substitution of a new attorney in his place (citations) and thereby the old attorney by his voluntary withdrawal forfeits his lien on the papers in the suit.’

The controversy arised, as so often is the case, over the application of these general principles to specific facts, and it must be largely decided by the answer which is given to the narrow question whether the appellant refused ‘without just cause’ to proceed with the defense of the Hebert action under the respondents as receivers. If he was justified in declining to continue and extend the obligations of his original retainer under and for the benefit of the receivers, then it must be conceded that they had no right to deprive him of his lien because he did so. It seems to me that neither principle nor authority compelled him to serve them as counsel simply because he had been originally retained by the corporation to the management of whose affairs they had succeeded.

[3] That the relationship between attorney and client is one of an unusual character has been so often affirmed that a statement of the proposition is commonplace. There lie at its foundation the elements of trust and confidence on the part of the client and of undivided loyalty and devotion on the part of the attorney which render the relationship a personal and confidential one and make its obligations on the part of the attorney if the most exacting kind. This conception of it is evidenced by the facts, amongst others, that the statute in the case of witnesses compels the observance by the attorney of the confidences which have been intrusted to him, and that the courts by virtue of their inherent power over attorneys compel by summary and rigorous proceedings their fulfillment of obligations springing out of the relationship, while they leave to ordinary processes the enforcement of contractual obligations undertaken by one who is an attorney when they lie outside of such relationship. Matter of Niagara, L. & O. Power Co., 203 N. Y. 493, 496,97 N. E. 33.

It is apparent that a relationship so personal and confidential may be more easily disturbed than a less sensitive on, and that its effectiveness may be so impaired by any change which destroys the confidence of the client or which requires the unwilling transfer by the attorney of his allegiance in a given matter to a substituted client as to make it desirable to permit a termination of the relation rather than to attempt to coerce its continuance under adverse conditions. This policy of permitting its dissolution in a manner which would not prevail in the case of ordinary contracts has been upheld in various cases. It is well established in the case of the client that he may at any time for any reason which seems satisfactory to him, however arbitrary, discharge his attorney. If the latter has not been guilty of any tangible violation of the relation, this substitution must be made on conditions which are fair to him. Tenney v. Berger, 93 N. Y. 524, 529,45 Am. Rep. 263;Matter of Prospect Avenue, 85 Hun, 257, 32 N. Y. Supp. 1013;Matter of Paschal, 77 U. S. 483, 496, 19 L. Ed. 992.

In the case of the attorney, the general rule is that he may terminate his relationship at any time for a good and sufficient cause and upon reasonable notice. Eliot v. Lawton, 7 Allen (Mass.) 274, 83 Am. Dec. 683;Powers v. Manning, 154 Mass. 370, 28 N. E. 290,13 L. R. A. 258. In illustration or amplification of this general rule it has been held that a retainer accepted by an attorney will terminate with his client's death and that he is not under obligation to transfer and continue the relationship to and with the representatives. Whitehead v. Lord, 9 Exch. 69; Avery v. Jacobs, 15 N. Y. Supp. 564. Also it has been laid down that a client may not introduce into a case a counsel who is professionally or personally objectionable to the attorney already retained therein, and, if he attempts so to do, the latter may discontinue his retainer. Tenney v. Berger, 93 N . Y. 524, 45 Am. Rep. 263, supra. Of course it is unnecessary to refer at length to those other palpable violations of a client's duty to his attorney which justify the latter's withdrawal, as that the former refuses to advance the necessary funds with which to prosecute the litigation, or that he attempts to enforce the employment of unworthy methods of sustaining his litigation.

It seems to me that the principles involved in these cases when applied to the present one in the light of the general observation made by Judge Earl in the Tenney Case, ‘that the rule that an attorney is bound to an entire contract should (not) be very rigidly enforced, while the client is left with the right arbitrarily to...