Michel v. McKenna

• Decision Date: 05 November 1929
• Citation: 199 Wis. 608,227 N.W. 396
• Parties: MICHEL v. MCKENNA ET AL.
• Court: Wisconsin Supreme Court

199 Wis. 608

227 N.W. 396

MICHEL

v.MCKENNA ET AL.

Supreme Court of Wisconsin.

Nov. 5, 1929.

Appeal from a judgment of the Circuit Court for Milwaukee County; John J. Gregory, Judge. Affirmed.

Action begun November 24, 1926, by Jennie Michel against Joseph McKenna and Frank P. Michel to recover for injuries sustained in an automobile collision. Defendant McKenna appealed from a judgment for the plaintiff entered December 20, 1928, which dismissed both the plaintiff's complaint and defendant McKenna's cross-complaint against defendant Frank P. Michel.

Plaintiff was riding in an automobile driven by her husband, the defendant Frank P. Michel, when it collided with an automobile driven by defendant McKenna. The jury found that defendant McKenna failed to exercise ordinary care which was the proximate cause of plaintiff's injuries, and that plaintiff was not guilty of any negligence. The jury also found that the defendant Frank P. Michel did not fail to exercise ordinary care in the operation of his automobile at the time of the collision.Michael Levin, of Milwaukee, for appellant.

Emmet J. Carrigan and Shaw, Muskat & Sullivan, all of Milwaukee, for respondent.

STEVENS, J.

1. The record presents what the trial judge aptly characterizes as “an ordinaryautomobile collision case,” which involves pure questions of fact for the jury, upon a record that would sustain a finding either way upon the question of which of these drivers was negligent. Were the question whether the evidence sustains the verdict the only one presented by the case, the judgment would be affirmed without further discussion. But the case presents other questions that demand consideration.

[1] 2. The first question arises because plaintiff's attorney, Irving T. Touhey, appeared as attorney in two actions arising out of this collision, in one of which he represented defendant Frank P. Michel in a suit against defendant McKenna, and in the other he represented plaintiff in this action against his own client, defendant Frank P. Michel, and the defendant McKenna. The mere statement of these facts clearly demonstrates that Mr. Touhey was guilty of highly unprofessional conduct.

“It is a well-settled general rule that an attorney cannot represent conflicting interests, or undertake the discharge of inconsistent duties. When he has once been retained and received the confidence of a client, he cannot accept a retainer from, or enter the service of, those whose interests are adverse to his client in the same controversy, or in matters so closely allied thereto as to be, in effect, a part thereof.” 1 Thornton, Attorneys at Law, § 174. This is a fundamental rule which arises of necessity out of the confidential and fiduciary character of the relationship between attorney and client. The acceptance of such retainers is absolutely inconsistent with the duties and obligations which the lawyer assumes when he accepts a retainer. It is in fact subversive of the very duties which the retainer imposes upon him.

The rule which prohibits attorneys from accepting adverse retainers “is a rigid one, and designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties, or be led to an attempt to reconcile conflicting interests, rather than to enforce to their full extent the rights of the interest which he should alone represent.” Strong v. International Building, Loan & Investment Union, 183 Ill. 97, 55 N. E. 675, 676, 47 L. R. A. 792, 794, 795. “The disadvantage under which a litigant must labor who is opposed, in the effort to enforce or defend his rights, by an attorney to whom he had, in the confidential relation of attorney and client, made a full disclosure of the facts as he claims them, is obvious. * * * The rule * * * is not only for the good of the profession, but the safety of clients.” Kluht v. Mitchell, 199 Iowa, 1163, 199 N. W. 294, 296.

The acceptance of such adverse retainers as those involved in this case must have placed Mr. Touhey in such a position that to faithfully perform the duty which he owed to the plaintiff, he must almost of necessity violate the attorney's oath that he will “maintain the confidence and preserve inviolate the secrets” of his client, the defendant Frank P. Michel. Section 256.29 of the Statutes. The acceptance of such adverse retainers opens wide the doors to collusion and to the practice of the grossest frauds upon courts.

[2] But it does not follow that defendant McKenna has a right to have the judgment reversed because Mr. Touhey was unfaithful to his trust. Mr. McKenna has no right to complain. His confidence was not violated. He had no right to any voice in determining who should represent his adversary in this legal contest. Improper conduct on the part of plaintiff's attorney “cannot be made the basis of a defense on the merits or of a plea in abatement.” Hovel v. Minneapolis & St. L. Ry. Co., 165 Minn. 449, 206 N. W. 710, 711.

[3] The party whose rights were violated was the defendant Frank P. Michel. He is the one who had a right to complain. But, like other rights possessed by him, he could waive that right by failing to make timely objection. Webber v. Barry, 66 Mich. 127, 33 N. W. 289, 291, 11 Am. St. Rep. 466;In re Premier Cycle Co., 70 Conn. 473, 482, 39 A. 800;Peirce v. Palmer, 31 R. I. 432, 450, 77 A. 201, Ann. Cas. 1912B, 181.

[4][5] Had it been the desire of the husband to object to his attorney appearing for an adverse party in this litigation, he should have promptly brought the matter to the attention of the court and not sat idly by and taken the chance of procuring a favorable verdict before raising that question. If he now desired to raise that question, he would not be heard. Cox v. Barnes, 45 Neb. 172, 63 N. W. 394, 396;Wetzler v. Glassner, 185 Wis. 593, 598, 201 N. W. 740. But it affirmatively appears that the husband had no objection to Mr. Touhey appearing for his wife in this action against him. It is therefore clear that the unprofessional course of conduct pursued by Mr. Touhey presents no ground for reversing the judgment here in question. Shoemake v. Smith, 80 Iowa, 655, 45 N. W. 744, 745.

[6] But the failure of the client to object does not condone the offense of the attorney. The court must still consider the question whether the offending attorney should be permitted to practice his profession. Murphy v. Riggs, 238 Mich. 151, 213 N. W. 110, 51 A. L. R. 1303, 1307.

“A client cannot consent that an attorney should be released from obligations which the law imposes upon him. A client may waive a privilege which the relation of attorney and client confers upon him, but he cannot enter into an agreement whereby he consents that the attorney may be released...