Monick v. Melnicoff

• Decision Date: 22 August 1958
• Docket Number: No. 2184.,2184.
• Citation: 144 A.2d 381
• Parties: George A. MONICK and David Kahn, Appellants, v. Ben Ivan MELNICOFF and John B. Poindexter, Appellees.
• Court: D.C. Court of Appeals

144 A.2d 381

George A. MONICK and David Kahn, Appellants, v. Ben Ivan MELNICOFF and John B. Poindexter, Appellees.

No. 2184.

Municipal Court of Appeals for the District of Columbia.

Argued May 12, 1958.

Decided August 22, 1958.

Katherine M. Staley, Washington, D. C., for appellants.

Ben Ivan Melnicoff, Washington, D. C., and John B. Poindexter, appellees, pro se.

Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.

HOOD, Associate Judge.

This appeal raises the question of an attorney's personal liability to pay the cost of a stenographic transcript ordered during the course of a proceeding in which the attorney appears on behalf of his client. Before stating the facts of this particular case we shall discuss the general principles of law on the subject.

The question usually arises in one of three situations. The first of these is when the attorney in ordering the transcript expressly either assumes or disclaims personal responsibility for the cost. Such cases present little difficulty. Clearly an attorney may bind himself to pay for a transcript even though it is to be used solely for the benefit of his client.¹ And it is equally clear that an attorney in ordering a transcript may avoid personal responsibility by making it clear that he is ordering for his client and on the credit of the client.

The second situation arises when there is a dispute as to whether the attorney in ordering the transcript undertook to be personally responsible or acted merely as agent for his client, pledging his client's credit and not his own. These cases present questions of fact for determination by the trier of the facts.²

The third situation arises when, in ordering the transcript, nothing is said by either the attorney or the reporter regarding whom the reporter shall look to for payment. This is the difficult situation and the courts are not in agreement as to the applicable principles of law.³ The question has arisen probably more often with respect to the cost of printing records and briefs rather than the cost of stenographic transcripts. We see no material distinction between these types of cases and treat them as the same.

One line of authorities takes the position that if the attorney is known to the reporter or printer to be an attorney representing a client, then the attorney acts as agent for a known principal and is not personally liable unless he agrees to be personally bound. Thus, in Loder Appeal Press v. Peerless Sugar Co., 278 App.Div. 737, 102 N.Y.S.2d 820, 821, 822, it was said:

"The law is well settled that an attorney's negotiations for work to be done in a law suit is the act of an agent for a known principal and for the expense of that service the agent does not become personally responsible."⁴

Another line of authorities holds that when an attorney orders printing or reporting, although known to be acting as an attorney, he becomes liable unless he makes it expressly known that he is ordering such work as agent for his client. Thus, in Trimmier v. Thomson, 41 S.C. 125, 19 S.E. 291, 292, it was said:

"If Thomson, as an attorney at law, contracted with Trimmier to print his client's briefs and arguments, unless in such contract he stipulated that he was having such work done as the agent of his clients as his pincipals, he will be liable to pay for such work."⁵

The effect of the first line of authorities appears to be that in these situations the attorney is not liable in the absence of his express agreement to be bound; and the second line appears to hold that the attorney is liable in the absence of his express declaration to the contrary. The first would put the burden on the printer or reporter to obtain the attorney's personal promise to pay; the second would put the burden on the attorney to personally disclaim responsibility. It appears to us that this jurisdiction is committed to the second — and perhaps minority — rule.

In Judd & Detweiler, Inc., v. Gittings, 43 App.D.C. 304, 310-311, a firm of attorneys were held personally liable for the cost of printing briefs ordered by them in cases in which they appeared as counsel. The court refused to apply the general rule of agency that one who contracts with the agent of a known principal cannot hold such agent responsible, and reached the following conclusion:

"We therefore deem the just and equitable rule of law thus established to be that, in the absence of express notice to the contrary, court officials and persons connected, either directly or indirectly, with the progress of the litigation, may safely regard themselves as dealing with the attorney, instead of with the client. This applies not only to obligations incurred by the attorney for actual costs attending the litigation, but to the necessary expenses of attorneys, including the printing of briefs, which are not chargeable as costs in the case."

It is true that in the Judd & Detweiler case reference was made to a custom existing between the attorneys and the printing firm, but as we read the decision the existence of the custom played no part in the court's announced "just and equitable rule of...