3

to release sureties; nor to enter a retraxit; 2 nor to act for the legal representatives of his deceased client; nor to release a witness.

§ 142. Nature of the service. In regard to the conduct of business by the attorney for his client, he must show, that he has done all that he ought to have done. Though he is generally bound to follow the instructions of his client, yet he is not bound to do what is intended merely for delay, or is otherwise in violation of his duty to the court. Generally speaking, the contract of an attorney or solicitor, retained to conduct or defend a suit, is an entire and continuing contract to carry it on until its termination; and if, without just cause, he quits his client before the termination of the suit, he can recover nothing for his bill. (a) But he may refuse to go on without any advance of money, or without payment of his costs in arrear, upon giving reasonable notice to his client; or, for just cause, and upon reasonable notice, he may abandon the suit; and in either case he may recover his costs up to that time. But he cannot insist upon the payment of moneys

due on any other account.9

1 Givens v. Briscoe, 3 J. J. Marsh. 532.

2 Lambert v. Sanford, 3 Blackf. 137.

Wood v. Hopkins, 2 Penningt. 689; Campbell v. Kincaid, 3 Monr. 566.

4 Marshall v. Nagel, 1 Bailey, 308.

5 Allison v. Rayner, 7 B. & C. 441; s. c. 1 M. & R. 241; Gill v. Lougher, 1 Cr. & J. 170; s. c. 1 Tyrw. 121; Godefroy v. Jay, 7 Bing. 413.

6 Johnson v. Alston, 1 Campb. 176; Pierce v. Blake, 2 Salk. 515; Vincent v. Groome, 1 Chitty, 182; Anon., 1 Wend. 108; Gilbert v. Williams, 8 Mass. 51.

7 Harris v. Osbourn, 4 Tyrw. 445; s. c. 2 Cr. & M. 629; Cresswell v. Byron, 14 Ves. 271; Anon., 1 Sid. 31, pl. 8; 1 Tidd's Pr. 86 (9th ed.); Love v. Hall, 3 Yerg.

408.

8 Lawrence v. Potts, 6 C. & P. 428; Wadsworth v. Marshall, 2 C. & J. 665; Vansandau v. Browne, 9 Bing. 402; Rowson v. Earle, Mood. & M. 538; Hoby v. Built, 3 B. & Ad. 350; Gleason v. Clark, 9 Cowen, 57; Castro v. Bennett, 2 Johns. 296. 9 Heslop v. Metcalf, 8 Sim. 622.

413); nor to execute a bond to the probate court upon an appeal (Clark v. Courser, 29 N. H. 170). An attorney's bond, in the name of the principal, to indemnify a sheriff, though made by parol authority, will bind the principal as a simple contract.

Ford v. Williams, 13 N. Y. 577. An attorney cannot execute a replevin bond for his client; but such bond is voidable, and the client may adopt it (Narraguagus Land Proprietors v. Wentworth, 36 Me. 339); nor assign the judgment or execution (Wilson v. Wadleigh, Id. 496); nor can he release or postpone the judgment lien on lands, created in a suit begun by himself on a claim given him to collect (Wilson v.

Jennings, 3 Ohio St. 528; Doub v. Barnes, 1 Md. Ch. Decis. 127). On the general subject of the limitations of an attorney's powers, see Moulton v. Bowker, 115 Mass. 136.

(a) Whitehead v. Lord, 11 Eng. Law & Eq. 587. The authority of an attorney to commence and prosecute a suit is revoked by the death of the constitutent, and he has no authority, without a new retainer, to appear in the suit for the constituent's executor or administrator. Gleason v. Dodd, 4 Met. (Mass.) 333; Palmer v. Reiffenstein, 1 Man. & G. 94; Shoman v. Allen, Id. 96, n.

§ 143. Defences for fees. In the defence of an action for professional fees and services, besides denying and disproving the retainer, the defendant may show, that the plaintiff has not exercised the reasonable diligence and skill which he was bound to employ; and may depreciate the value of the services, upon a quantum meruit, by any competent evidence. Whether negligence can be set up as a defence to an action for an attorney's bill of fees, is a point which has been much questioned. If the services have proved entirely useless, it has long been agreed, that this may be shown in bar of the whole action; and, after some conflict of opinions, the weight of authority seems in favor of admitting any competent evidence of negligence, ignorance, or want of skill, as a defence to an action for professional services, as well as for any other work and labor.1 (a)

§ 144. Gross ignorance. An attorney undertakes for the employment of a degree of skill, ordinarily adequate and proportionate to the business he assumes. "Spondet peritiam artis. Imperitia culpæ adnumeratur.” 2 Reasonable skill constitutes the measure of his engagement.3 (b) "Attorneys," said Lord Mansfield, "ought to be protected when they act to the best of their skill and knowledge; and I should be very sorry that it should be taken for granted, that an attorney is answerable for every error or mistake, and to be punished for it by being charged with the debt, which he was employed to recover for his client, from the person who stands indebted to him. A counsel may mistake, as well as an attorney. Yet no one will say that a counsel, who has been mis

1 See supra, Assumpsit, § 136, and cases there cited; Kannen v. McMullen, Peake's Cas. 59; Chapel v. Hicks, 2 C. & M. 214; 4 Tyrw. 43; Cutler v. Close, 5 C. & P. 337; Cousens v. Paddon, 5 Tyrw. 535; Hill v. Featherstonhaugh, 7 Bing. 569; Montriou v. Jefferys, 2 C. & P. 113; Huntley v. Bulwer, 6 Bing. N. C. 111; Grant v. Button, 14 Johns. 377; Brackett v. Norton, 4 Conn. 517. But see Templer v. McLachlan, 2 New Rep. 136; Runyan v. Nichols, 11 Johns. 547.

2 Story on Bailm. § 431.

8 Story on Bailm. §§ 432, 433; Reece v. Rigby, 4 B. & A. 202; Ireson v. Pearman, 3 B. & C. 799; Hart v. Frame, 3 Jur. 547; 6 Cl. & Fin. 193; Lanphier v. Phipos, 8 C. & P. 475; Davies v. Jenkins, 11 M. & W. 745.

(a) In Caverly v. McOwen, 123 Mass. 574, it was held that in such a case the burden is on the plaintiff to make out a prima facie case by proving that the work was done, at the request of the defendant, and also what the work is reasonably worth. On this latter part of the case it is competent for the defendant to introduce evidence that by reason of the negli

gence or unskilfulness of the plaintiff such services were of little or no value. This evidence is admissible under a general denial.

(b) Wilson v. Coffin, 2 Cush. (Mass.) 316; Holmes v. Peck, 1 R. I. 242; Parker v. Rolls, 28 Eng. Law & Eq. 424; Cox v. Sullivan, 7 Ga. 144.

taken, shall be charged with the debt. The counsel, indeed, is honorary in his advice, and does not demand a fee; the attorney may demand a compensation. But neither of them ought to be charged with the debt for a mistake."2 In a more recent case, the law on this subject was thus stated by Lord Brougham: “It is of the very essence of this kind of action that it depends, not upon the party having been advised by a solicitor or attorney in a way in which the result of the proceeding may induce the party to think he was not advised properly, and may, in fact, prove the advice to have been erroneous; - not upon his having received, if I may so express it in common parlance, bad law, from the solicitor; nor upon the solicitor or attorney having taken upon himself to advise him, and, having given erroneous advice, advice which the result proved to be wrong, and in consequence of which error the parties suing under that mistake were deprived and disappointed of receiving a benefit. But it is of the very essence of this action that there should be a negligence of a crass description, which we shall call crassa negligentia, that there should be gross ignorance, that the man who has undertaken to perform the duty of attorney, or of a surgeon, or an apothecary (as the case may be), should have undertaken to discharge a duty professionally, for which he was very ill qualified, or, if not ill qualified to discharge it, which he had so negligently discharged as to, damnify his employer, or deprive him of the benefit which he had a right to expect from the service. That is the very ground Lord Mansfield has laid down in that case, to which my noble and learned friend on the woolsack has referred a little while ago, and which is also referred to in the printed papers. It was still more expressly laid down by Lord Ellenborough in the case of Baikie v. Chandless, because there Lord Ellenborough uses the expression,' an attorney is only liable for crassa negligentia,' therefore, the record must bring before the court a case of that kind, either by stating such facts as no man who reads it will not at once perceive, although without its being alleged in terms, to be crassa negligentia, — something so clear that

1 In the United States, the offices of attorney and counsellor are so frequently exercised by the same person that they have become nearly blended into one; and actions for compensation for services performed in either capacity are freely sustained in most if not all the States of the Union.

2 Pitt v. Yalden, 4 Burr. 2061. And see Compton v. Chandless, cited 3 Campb. 19; Kemp v. Burt, 4 B. & Ad. 424; Shilcock v. Passman, 7 C. & P. 289; Nixon v. Phelps, 29 Vt. 198.

3 Pitt v. Yalden, 4 Burr. 2060.

4 3 Campb. 17.

no man can doubt of it; or, if that should not be the case, then he must use the very averment that it was crassa negligentia.”

"1

§ 145. Inattention. More particularly, an attorney is held liable for the consequence of ignorance or non-observance of the rules of practice of the court; for the want of proper care in the preparation of a cause for trial, or of attendance thereon, and the use of due means for procuring the attendance of the witnesses; and for the mismanagement of so much of the cause as is usually and ordinarily allotted to his department of the profession. But he is not answerable for error in judgment upon points of new occurrence, or of nice and doubtful construction, or of a kind usually entrusted to men in another or higher branch in the profession.2 If he undertakes the collection of a debt, he

1 Purves v. Landell, 12 Clark & Fin. 91, 98, 99. This was an action in Scotland, against a writer to the signet, for advising and conducting an improper and irregular mode of procedure against a debtor, which proved fruitless and expensive to the plaintiff, and resulted in large damages recovered against him in an action for false imprisonment. The action ultimately failed, for want of any allegation and proof of gross ignorance or gross negligence on the part of the attorney or law agent. Lord Campbell, in delivering his opinion, in which the other lords concurred, expressed himself as follows: "In an action such as this, by the client against the professional adviser, to recover damages arising from this misconduct of the professional adviser, I apprehend there is no distinction whatever between the law of Scotland and the law of England. The law must be the same in all countries where law has been considered as a science. The professional adviser has never been supposed to guarantee the soundness of his advice. I am sure I should have been sorry, when I had the honor of practising at the bar of England, if barristers had been liable to such a responsibility. Though I was tolerably cautious in giving opinions, I have no doubt that I have repeatedly given erroneous opinions; and I think it was Mr. Justice Heath who said that it was a very difficult thing for a gentleman at the bar to be called upon to give his opinion, because it was calling upon him to conjecture what twelve other persons would say upon some point that had never before been determined. Well, then, this may happen in all grades of the profession of the law. Against the barrister in England and the advocate in Scotland luckily no action can be maintained. But against the attorney, the professional adviser, or the procurator, an action may be maintained. But it is only if he has been guilty of gross negligence, because it would be monstrous to say that he is responsible for even falling into what must be considered a mistake. You can only expect from him that he will be honest and diligent; and, if there is no fault to be found either with his integrity or diligence, that is all for which he is answerable. It would be utterly impossible that you could ever have a class of men who would give a guaranty, binding themselves, in giving legal advice and conducting suits at law, to be always in the right.

"Then, my lords, as crassa negligentia is certainly the gist of an action of this sort, the question is whether in this summons that negligence must not either be averred or shown? This is not any technical point in which the law of Scotland differs from the law of England. I should be very sorry to see applied, and I hope this House would be very cautions in applying, technical rules which prevail in England to proceedings in Scotland. But I apprehend that, in this respect, the laws of the two countries do not differ, and that the summons ought to state, and must state, what is necessary to maintain the action; this summons must either allege negligence, or must show facts which inevitably prove that this person has been guilty of gross negligence." Id. pp. 102, 103; Marsh v. Whitmore, 21 Wall. (U. S.) 178.

2 Godefroy v. Dalton, 6 Bing. 467, per Tindal, C. J. And see Lynch v. Commonwealth, 16 S. & R. 368.

is bound to sue out all process necessary to that object. Thus, he is bound to sue out the proper process against bail; and against the officer, for taking insufficient bail, or for not delivering over the 'bail-bond; 2 and to deliver an execution to the officer, in proper season after judgment, to perfect and preserve the lien created by the attachment of property on mesne process; 3 but not to attend in person to the levy of the execution. If he doubts the expediency of further proceeding, he should give notice to his client, and request specific instructions; 5 without which, it seems, he would be justified in not prosecuting, in cases where he is influenced by a prudent regard to the interest of his client." § 146. When action lies. Damages. For every violation of his duty, an action lies immediately against the attorney, even though merely nominal damages are sustained at the time; for it is a breach of his contract; but actual damages may be recovered for the direct consequences of the injury, even up to the time of the verdict. The damages do not necessarily extend to the nominal amount of the debt lost by the attorney's negligence, but only to the loss actually sustained.8

§ 147. Attorney as an officer of the court. An attorney, being an officer of the court in which he is admitted to practice, is held amenable to its summary jurisdiction, for every act of official misconduct. The matter is shown to the court by petition or motion, ordinarily supported by affidavit; and the order of the court, after hearing, is enforced either by attachment, or by striking his name from the roll. (a) If he neglects or refuses to

1 Dearborn v. Dearborn, 15 Mass. 316; Crooker v. Hutchinson, 1 Vt. 73.

2 Crooker v. Hutchinson, 1 Vt. 73; Simmons v. Bradford, 15 Mass. 82.

Phillips v. Bridge, 11 Mass. 246. And see Pitt v. Yalden, 4 Burr. 2060; Russell

. Palmer, 2 Wils. 325.

Williams v. Reed, 3 Mason, 405.

6 Crooker v. Hutchinson, 2 Chipm. 117.

5 Dearborn v. Dearborn, 15 Mass. 316.

7 Wilcox v. Plummer, 4. Peters, 172. And see Marzetti v. Williams, 1 B. & Ad. 415. 8 Dearborn v. Dearborn, 15 Mass. 316; Crooker v. Hutchinson, 2 Chipm. 117; Huntington v. Rumnill, 3 Day, 390. And see infra, § 599.

In several of the American States, persons of full age, and qualified as the statutes of those States prescribe, are entitled to admission to practise as attorneys in any of the courts, and it is made the duty of the judges to admit them accordingly. Whether persons of this class are amenable to the summary jurisdiction of the courts has been doubted. If they are not, this fact shows the great impolicy of popular interference with the forms of administering justice, since in this case the legislatures will have unconsciously deprived the people of the benefit of one of the strongest securities for professional good conduct.

(a) In the matter of Eldridge, 82 N. Y. 161, the court held that the motion and

affidavits are in the nature of pleadings only, not evidence, and that when they are