§ 557. The relation of attorney and client. The technical relation of an advocate and client in litigation, which, under English law, creates on the one hand the incapacity to make a contract of hiring as an advocate,1 and on the other affords him immunity from actions. grounded on an imputation of negligence in the bona fide discharge of his duties, is not generally recognized in this country or in Canada, where it is well settled that the relation of attorney and client may exist between counsel and one who engages his services in a professional capacity; and where that relation exists, he is responsible to his client, like an attorney, for negligence in the discharge of his duty. In speaking of attorneys, there

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Kennedy v. Broun, 13 C. B. N. S. 677, per Erle, C. J. In this country, at an early day, the rule that counsel could not sue for services was adopted in Pennsylvania (Mooney v. Lloyd, 5 Serg. & R. 412, decided in 1819, overruling Brackenridge v. McFarlane, Add. 49, which was decided in 1793), and is still maintained in New Jersey (Seeley v. Crane, 3 Greene, 35; Van Atta v. McKinney, 16 N. J. Law, 235), and to some extent in the Federal courts (Law v. Ewell, 2 Cranch C. C. 144); but the principle was afterwards rejected in Pennsylvania (Gray v. Brackenridge, 2 P. & W. 75; Foster v. Jack, 4 Watts, 334; Balsbaugh v. Frazer, 19 Pa. St. 95; Lynch v. Commonwealth, 16 Serg. & R. 368). In other States, it has been expressly decided that counsel, as well as attorneys, may recover compensation by action. So held in New York (Stevens v. Adams, 23 Wend. 57, 26 Id. 451; Wilson v. Burr, 25 Id. 386; Wallis v. Loubat, 2 Den. 607; Merritt v. Lambert, 10 Paige, 352; Lynch v. Willard, 6 Johns. Ch. 342); in Massachusetts (Brigham v. Foster, 7 Allen, 419; Ames v. Gilman, 10

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Metc. 239; Thurston v. Percival, 1. Pick. 415; see Buckland v. Conway, 16 Mass. 396); in Vermont (Briggs v. Georgia, 10 Vt. 68; Vilas v. Downer, 21 Id. 419); in Pennsylvania (Balsbaugh v. Frazer, 19 Pa. St. 95; Foster v. Jack, 4 Watts, 334; Gray v. Brackenridge, 2 P. & W. 75); in Delaware (Stevens v. Monges, 1 Harringt. 127); in South Carolina (Duncan v. Breithaupt, 1 McCord, 149; Clendinen v. Black, 2 Bailey, 488); in Ohio (Christy v. Douglas, Wright, 485); in Illinois (Cooper v.. Delavan, 61 Ill. 96); in Kentucky (Rust v. Larue, 4 Litt. 411, 417; Caldwell v. Shepherd, 6 Mon. 389); in Tennessee (Newnan v. Washington, Mart. & Yerg. 79); in Missouri (Webb v. Browning, 14 Mo. 354); in Texas (Baird v. Ratcliff, 10 Tex. 81); and in Florida (Carter v. Bennett, 6 Fla. 214).

2 Swinfen v. Lord Chelmsford, 1 Fost. & F. 619, aff'd, 5 Hurlst. & N. 899; Perring v. Rebutter, 2 M. & Rob. 429; Fell v. Brown, Peake, N. P. 96; Turner v. Philipps, Id. 122. 3 Cases cited in note 1, supra. McDougall v. Campbell, 41 Upper Canada [Q. B.], 332.

fore, we mean lawyers

persons acting professionally

in legal formalities, negotiations or proceedings, by the warrant or delegation of their client."

§ 558. Degree of skill, etc., required of attorneys. An attorney who undertakes to conduct legal proceeding; professes himself to be reasonably well acquainted with the law and the rules and practice of the courts; and he is bound to exercise in the conduct of such proceedings a reasonable degree of prudence, diligence and skill. He does not profess to know all the law, or to be incapable of misunderstanding or misapplying it to new and nice questions; for the most skillful counsel, and even judges, "may differ or doubt, and take time to consider."" What an attorney does profess and undertake, and all that he professes and undertakes, is, first, that he possesses the knowledge and skill common to members of his profession, and, second, that he will exercise, in his client's business, an ordinary and reasonable degree of attention, prudence and skill.' It is said not to be enough

*It seems, that a person, not legally authorized to practice law, employed to conduct judicial proceedings, is not legally responsible to his employer for his ignorance in respect thereto (Wakeman v. Hazleton, 3 Barb. Ch. 148). But he is liable as an agent for a fraud on his employer (Freelove v. Cole, 41 Barb. 318).

"Pitt v. Yalden, 4 Burr. 2060, per Lord Mansfield; see Kemp v. Burt, 4 Barn. & Adol. 424; Bulmer v. Gilman, 4 Man. & G. 108; Donaldson v. Haldane, 7 Clark & Fin. 762. In Montriou v. Jefferys (2 Carr. & P. 113), the court charged the jury: "No attorney is bound to know all the law. God forbid that it should be imagined that an attorney, or counsel, or even a judge, is bound to know all the law."

In Lanphier v. Phipos, 8 Carr. & P. 479), Tindal, C. J., speaking of the degree of skill required of a surgeon, said: "An attorney does not undertake, at all events, you shall gain your cause, nor does a surgeon undertake that he will perform a cure; nor does he undertake to use the highest possible degree of skill. There may be persons who have higher education and greater advantages than he has; but he undertakes to bring a fair, reasonable and competent degree of skill;" s. P., Bowman v. Tallman, 2 Rob. 385, aff'd, 40 How. Pr. 42, 3 Abb. Ct. App. 182, note; Weimer v. Sloane, 6 McLean, 259; Ex parte Gilberson, 4 Cranch C. C. 503; Watson v. Muirhead, 57 Pa. St. 161; U. S. Mortgage Co. v. Henderson, 111 Ind. 24, 34,

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to exhibit the same skill and diligence in his client's affairs that he does in his own - a lawyer's carelessness and unskillfulness in his own legal affairs being proverbial.

§ 559. General rule of liability. While it is not difficult to deduce a general rule governing an attorney's liability for unskillfulness, if we consider alone the actual decisions of the courts, yet it will be found not a little difficult to reconcile with sound principle the language which the judges have employed in many of the reported cases. As juries are popularly supposed, in disputes between lawyers and their clients, to display a bias toward the latter, it may well be that judges have sometimes shown a corresponding liberality toward the former. Thus, it has been stated in case of undoubted authority, that lawyers are liable to their clients only for gross negligence and utter incompetency." It may be, and so it has some

12 N. E. 88; Moorman v. Wood, 117 Ind. 144, 19 N. E. 739; Goodman v. Walker, 30 Ala. 482; Gambert v. Hart, 44 Cal. 542; Morrill v. Graham, 27 Tex. 646; Fox v. Jones [Tex.], 14 S. W. 1007. Testimony of other lawyers as to whether, in their opin ion, the advice given by defendant was such as a prudent, careful law yer, of ordinary capacity and intelligence, would or ought to have given, under the circumstances is admissible (Cochrane v. Little, 71 Md. 323, 18 Atl. 698). See § 559, notes 12 and 14, post, and § 560, note 16, post.

Wharton, Neg., § 748.

Baikie v. Chandless, 3 Campb. 17; Purves v. Landell, 12 Clark & Finn. 91; Lynch v. Commonwealth, 16 Serg. & R. 368; and see Palmer v. Ashley, 3 Ark. 75; Gilbert v. Williams, 8 Mass. 57. In Wilson v. Russ, 20 Me. 421, Emery, J., said: "The attorney is bound to execute

business in his possession, intrusted to his care, with a reasonable degree of care, skill, and dispatch. If the client be injured by the gross fault, negligence, or ignorance of the attorney, the attorney is liable; but if he act with good faith, to the best of his skill, and with an ordinary degree of attention, he will not be responsible." In Holmes v. Peck, 1 R. I. 245, it was said that "the want of ordinary care and skill [in an attorney] is gross negligence." In Pennington v. Yell, 11 Ark. 212, Scott, J., although conceding that "reasonable diligence and skill constitute the measure of an attorney's engagement to his client," yet he went on to say, "he is liable only for gross negligence or gross ignorance in the performance of his professional duties." The same idea was expressed by the court in Evans v. Watrous, 2 Port. [Ala.], 205, but

times been held, that to defeat an attorney's claim for compensation in a professional matter, such services must be shown to have been utterly worthless; 10 but it does not follow that in an action against an attorney for damages resulting from his want of skill or diligence, gross negligence, and nothing short of it, must be shown. The true rule of liability undoubtedly is, that an attorney is liable for a want of such skill, prudence and diligence as lawyers of ordinary skill and capacity, versed in the particular practice at the particular bar," commonly possess and exercise,12 In absence of express representa

tion, he will be presumed to have held himself out as possessing such skill and knowledge as attorneys of his own State might reasonably be supposed to possess, and no that he is liable for the consequences 325; Pitt v. Yalden, 4 Burr. 2061; of ignorance or non-observance of Jones v. Lewis, 9 Dowl. P. C. 143; the rules of practice of the courts, Hayne v. Rhodes, 8 Q. B. 342; Stanfor want of care in the prepara- nard v. Ullithorne, 10 Bing. 491; tion of the cause for trial, or of at- Walpole v. Carlisle, 32 Ind. 415; tendance thereon with his witnesses, Carter v. Talcott, 2 How. Pr. N. S. or for the mismanagement of so 352; Bowman v. Tallman, 2 Robt. much of the conduct of a cause as is 385. The rule stated in the text usually allotted to his department quoted and approved in Gambert v. of the profession. Whilst, on the Hart, 44 Cal. 542. See Watson v. other hand, he is not answerable for Muirhead, 57 Pa. St. 161; O'Barr error in judgment upon points of v. Alexander, 37 Ga. 195; Stubbs v. new occurrence or of nice or doubt- Beene, 37 Ala. 627; Hatch v. Fogerty, ful construction, or of such as are 33 N. Y. Superior, 166; Suydam v. usually intrusted to men in the Vance, 2 McLean, 99; Lane v. Storke, higher branch of the profession of 10 Cal. App. 347, 101 Pac. 937 the law." In Hart v. Frame, 6 (1910); but facts held not to show Clark & Fin. 193, 210, in the House gross negligence (Whitney v. Abbot, of Lords, the Lord Chancellor (Cot- 191 Mass. 59, 77 N. E. 524 (1906); tenham) said: "Professional men, Rooker v. Bruce, 90 N. E. (Ind. possessed of a reasonable portion of App.) 86 (1909); Childs v. Comstock, information and skill, according to 69 App. Div. 160, 74 N. Y. Supp. the duties they undertake to per- 643. An attorney engaged to proform, and exercising what they so tect the rights of the owner of a strip possess with reasonable care and of land taken by a town for public diligence in the affairs of their em- purposes is liable to his client for ployers, certainly ought not to be loss caused by his neglect to sue held liable for errors in judgment, within the time limited by statute, whether in matters of law or discre- and a subsequent settlement by the tion. Every case, therefore, ought owner with the town is not a bar to depend upon its own peculiar cir- to the action, but the amount so recumstances; and when an injury has ceived should be deducted from the been sustained which could not have damages suffered (Drury v. Butler, arisen except from the want of such 171 Mass. 171, 50 N. E. 527 (1908). reasonable care and diligence, or the Where writ was issued by a client absence of the employment of either on an affidavit which owing to the on the part of the attorney, the law attorney's neglect did not conform holds him liable. In undertaking the to the statute, and judgment obclient's business, he undertakes for tained against the client for arrest the existence and for the due em- under a void writ, held the client ployment of those qualities, and re- is entitled to recover his damages ceives the price of them." And see (Forrow v. Arnold, 22 R. I. 305, Stephenson v. Rowand, 2 Dow & Cl. 47 Atl. 693 (1900). "An attorney 119; s. P., Russell v. Palmer, 2 Wils. must be held to undertake to use