more.13 And he is not chargeable with ignorance or negligence in accepting as a correct exposition of the law a decision of the court of last resort of his own State," provided such decision had not been reversed by the Federal Supreme Court." If a reasonable degree of care and skill, and to possess to a reasonable extent the knowledge requisite to a proper performance of the duties of his profession; and if injury results to the client as a proximate consequence of the lack of such knowledge or skill, or from the failure to exercise it, the client may recover damages to the extent of the injury sustained; but we are all human beings and attorneys are not responsible for errors they may make. an attorney is fairly capacitated to discharge the duties ordinarily incumbent upon one of his profession and acts with a proper degree of attention and with reasonable care to the best of his skill, he will not be responsible (instruction given by the trial court approved), Malone v. Gerth, 100 Wis. 166, 75 N. W. 972 (1898). Failure to report liens when employed to examine a title would ordinarily render an attorney liable, but not so where the liens were of questionable validity and the failure to report them was due to an honest mistake of judgment (Humbolt, etc. Assn. v. Ducker's Exrs., 111 Ky. 759, 64 S. W. 671, 23 Ky. L. Rep. 1073 (1901). Where a firm of lawyers made a negligent examination of the title and approved it for a client preparing to purchase regardless of an outstanding equity, each member of the firm was responsible for the negligence of one (Priddy v. MacKenzie, 205 Mo. 181, 194, 103 S. W. 968 (1907). An attorney who by his negligence 66 "Hastings v. Halleck, 13 Cal. 203. He is bound to know how to apply the law clearly defined in elementary books or declared in adjudged cases, reported a sufficient length of time to become known to those who exercise reasonable diligence in keeping pace with the literature of the profession" (Citizens' Loan Ass'n v. Friedley, 123 Ind. 143, 23 N. E. 1075, 18 Am. St. Rep. 320, 7 L. R. A. 669. In that case, defendant advised that a mortgage executed by husband and wife on land held by them as tenants by entireties was good. Afterwards the Supreme Court held such a mortgage void, as to both mortgagors. Held, not such a mistake as to make defendant liable to client, as well informed lawyers might well have differed in opinion on the subject (Hill v. Mynatt, Tenn. 59 S. W. 163, 52 L. R. A. 883 (1900). He is not chargeable with negligence for proceeding under a statute only subsequently held unconstitutional (Poucher v. Blanchard, 86 N. Y. 256). 15 Marsh v. Whitmore, 21 Wall. 178. See 21 Am. Law Rev. 252. § 560. When liable for gross negligence only. - Such is the general rule; but, as each case is to be decided upon its own peculiar facts, it is not difficult to conceive a case where an attorney would be liable only for gross negligence.16 If he, at the outset, frankly acknowledges to his client his want of experience or skill in a particular department of business, or if the elient becomes aware of it in some other way, and, notwithstanding, entrusts his business to the attorney, the client cannot complain of the latter's want of that which he knew never existed. It might, however, become a question in such a case, how far the attorney was bound to consult counsel, and whether a neglect to do so did not amount to a want of ordinary care and prudence. 16 In Patterson et al. v. Frazer, 100 Tex. 103, 94 S. W. 324 (1906), the appellee sued the attorneys to recover damages for having negligently allowed her suit against Moore and wife for slander to be dismissed, the action being thereafter barred by limitations, and sought to recover the damages she might have recovered in the original case. The Supreme Court overruled an assignment of error to the refusal of the trial court to charge that the plaintiff was not entitled to recover unless for " gross negligence or gross ignorance," saying it would not have assisted the jury "in determining whether the defendants had been guilty of such negligence as would render them responsible to the plaintiff for the loss of her case, and approved the instruction given by the trial court which was as follows: "Attorneys at law engaged in the practice of their profession are held to undertake to use a reasonable degree of care and skill, and to possess, to a reasonable extent, the knowledge requisite to a proper [LAW OF NEG. VOL. 1-98] performance of the duties of their profession; and if injury results to the client as a proximate consequence of the want of such knowledge or skill, or from a failure to exercise such reasonable care and diligence, they are liable in damages to the extent of the injury sustained by their client. There is, however, no implied agreement in the relation of counsel and client, or in the employment of the former by the latter, that the former will guarantee the success of his proceedings in a suit, or the soundness of his opinions, or that they will ultimately be sustained by the court of last resort. He only undertakes to avoid errors which members of his profession, of ordinary prudence, learning, diligence, and skill, would not commit. An attorney is not liable as to a question of law upon which reasonable doubt may be entertained by lawyers. of ordinary learning and skill, nor is he answerable for errors in judgment upon doubtful points, upon which lawyers of ordinary learning and ability may reasonably § 561. Liability to summary jurisdiction of court. As officers of the courts to which they are admitted to practice, attorneys are subject to the courts for any want of good faith and honesty in their relations with clients.16a The question of negligence will not in general be tried on motion, but only questions of good faith and integrity." differ, but errors as to questions of to turn over to his client; held, that law which an attorney with reasonable capacity, with ordinary investigation, might know, is a ground for liability, where injury results therefrom. By 'reasonable care and skill' and 'reasonable knowledge' is meant such a degree of care, diligence and skill as a practicing lawyer of ordinary skill and prudence and knowledge of the law would exercise in case of like character under like circumstances; and a failure on the part of an attorney at law to exercise the degree of said skill and knowledge in behalf of his client, as is above explained to you, would be negligence, and, if injury resulted to his client by reason of such failure, he would be liable" (79 S. W. 1079). 1a This jurisdiction is assumed on the ground that, as the attorney acts as an officer of the court, it is the latter's duty to enforce the demands of justice between its officers and other persons employing them in their official capacity (Matter of Wolf, 51 Hun, 407, 4 N. Y. Supp. 239; see Matter of Knapp, 85 N. Y. 284; Matter of Chittenden, 4 N. Y. St. Rep. 606, aff'd, 105 N. Y. 679, 13 N. E. 930; Matter of Husson, 26 Hun, 130, 87 N. Y. 521 [enforcing delivery of client's documents retained without authority]; Matter of Foster, 49 Hun, 114, 1 N. Y. Supp. 619). A solicitor in New Jersey, also an attorney in New York, collected alimony, which he refused chancery in New Jersey had the right to exercise summary jurisdiction though the money was collected on a settlement made in New York; permanent alimony is a purely personal and not a property right, it is not susceptible of assignment; a contract for the payment of part of it for professional services is void both because incapable of assignment and contrary to public policy (Lynde v. Lynde, 64 N. J. Eq. 736, 52 Atl. 694, 97 Am. St. Rep. 692, 58 L. R. A. 471 (1902). 17 "Sharp v. Hawker, 3 Bing, N. C. 66; Brazier v. Bryant, 2 Dowl. P. C. 600; Matter of Jones, 1 Chit. 651; Matter of Fenton, 3 Ad. & El. 404; Matter of Aitkin, Barn. & Ald. 47. The retention of money by an attorney, in good faith for the settlement of a disputed controversy concerning his right to retain it, is not a legal answer to a summary proceeding (Bowling Green Sav. Bk. v. Todd, 52 N. Y. 489; Matter of Wolf, 51 Hun, 407, 4 N. Y. Supp. 239); Union Bldg. Co. v. Soderquist, 115 Iowa, 965, 87 N. W. 433 (1901). "This proceeding is based on the principle that the court has power over its own officers to prevent them from, or punish them for, committing acts of dishonesty or impropriety calcu lated to bring contempt upon the administration of justice City of New York, 128 N. Y. 67, 27 N. E. 957; In re Paschal, 10 Wall. 483, 19 L. Ed. 992. The ground (Schell v. Proceeding on motion against an attorney for money collected is no bar to a recovery in an action on the case for his negligence in the suit.18 But proceeding by action for money collected is a waiver of the right to proceed by attachment.19 18 19 Cottrell v. Finlayson, 4 How. Pr. 242; see Bohanan v. Peterson, 9 Wend. 503. This subject, not falling within the scope of this treatise, is not pursued further. See Weeks on Attorneys, §§ 77, 105. was § 562. Obligation not dependent upon compensation. -The obligation of an attorney is to his client alone.20 Thus, where, in answer to a casual injury by a stranger, of the jurisdiction thus exercised is Coopwood v. Baldwin, 25 Miss. the misconduct of the officer. If an 129. Motion should be made in the attorney has collected money for original action in which the misconhis client, it is prima facie his duty, duct was committed, not in the after having deducted his own costs action against the attorney (Granand disbursements, to pay it over gier v. Hughes, 56 N. Y. Superior, to such client; and his refusal to do 346, 3 N. Y. Supp. 828). this without some good excuse is gross misconduct and dishonesty on his part, calculated to bring discredit on the court and on the administration of justice. It is the misconduct on which the court seizes as a ground for jurisdiction to compel him to pay the money in conformity with his professional duty. (In re Paschal, supra). Some courts have expressed the view that, if no dishonesty on the part of the attorney appears, the summary proceeding should be dismissed, and the client left to his action at law (In re Paschal, supra; In re Rule on Kennedy, 120 Pa. 497, 14 Atl. 397, 6 Am. St. Rep. 724; Balsbaugh v. Frazer, 19 Pa. 95; Mundy v. Strong, 52 N. J. Eq. 833, 31 Atl. 611). "The law is not guilty of the absurdity of holding that, after a client has spent years in collecting through his attorney a lawful demand, he shall be put to spending as many more to collect from his attorney, and, if the attorney shall not pay, then try the same track again" (Bank v. Todd, 52 N. Y. 489). # 20 An unsuccessful attempt made in Buckley v. Gray (110 Cal. 339, 42 Pac. 900), by one who claimed to have been deprived of a legacy which a testator intended to bequeath him, to hold the attorney who drew the will on testator's retainer, for negligence in leaving it out; it being held that Cal. Code (§ 1559) that a contract expressly made for a third person may be enforced by him, did not authorize the action (McDonald v. State, 143 Ala. 101, 39 So. 257 (1905); Haygood v. McKenzie, 119 Ga. 466, 46 S. E. 624 (1904); Union, etc. Co. v. Soderquist, 115 Iowa, 695, 87 N. W. 433 (1901); Pritchard v. Marvin, 158 N. Y. 667, 53 N. E. 1131, aff'g 33 App. Div. 639, 56 N. Y. Supp. 974 (1899). See Pierce v. Palmer, 77 Atl. 201 (1910). be bona fide gives erroneous information as to the contents of a deed, he is not responsible to the inquirer."1 To create the obligation, however, it is not necessary that there should be a compensation paid or to be paid. An attorney may be liable, although his services were rendered gratuitously.22 But an attorney acting gratuitously is undoubtedly liable only for gross negligence. An attorney who takes legal proceedings in the name of another without authority is, of course, liable to such person,23 or to any other person who is immediately prejudiced thereby.24 § 563. Retainer implies professional employment merely. — Under a general retainer, in the absence of a special agreement, an attorney is not bound to take any steps in his client's business not implied by his profession. Under a general employment to collect a note "Fish v. Kelly, 17 C. B. N. S. 194. Donaldson v. Haldane, 7 Clark & F. 762; Stephens v. White, 2 Wash. 203. Cavillaud v. Yale, 3 Cal. 108, to the contrary, cannot be sustained. As to sufficiency of pleading, see Bourne v. Diggles, 2 Chit. 311; Whitehead v. Greetham, 2 Bing. 464; Eccles v. Stephenson, 3 Bibb, 517; Burghart v. Gardner, 3 Barb. 64. The plaintiff may frame his action in assumpsit or case for the breach of duty (2 Chit. Pl. 373; Church v. Mumford, 11 Johns. 479; Stimpson v. Sprague, 6 Me. 470); Lawall v. Groman, 180 Pa. St. 532, 37 Atl. 98, 57 Am. St. Rep. 662 (1897). Westaway v. Frost, 17 Law J. [Q. B.] 286; Bradt v. Walton, 8 Johns. 298. A recovery against an attorney for unreasonably defending an action wherein he appeared without authority, and unskillfully conducting the defense, was sustained in O'Hara v. Brophy, 24 How. Pr. 379; and see Bradt v. Walton, 8 Johns. 298; Ellsworth v. Campbell, 31 Barb. 134; Field v. Gibbs, Pet. C. C. 155; Minnikuyson v. Dorsett, 2 Harr. & Gill, 374; Coit v. Sheldon, 1 Tyler, 300; Hubbart v. Phillips, 13 Mees. & W. 702; Hoskins v. Phillips, 16 Law J. [Q. B.] 339; Dupen v. Keeling, 4 Car. & P. 102. The unauthorized appearance of an attorney gives validity to the proceeding against the client, and the remedy is either against the attorney or by motion in the action (Brown v. Nichols, 42 N. Y. 26; Gall v. Funkenstein, 10 N. Y. St. Rep. 331); Ferguson v. Crawford, 70 N. Y. 253, 26 Am. Rep. 589; Reynolds v. Fleming, 30 Kans. 106, 1 Pac. 61, 46 Am. Rep. 86; Cleveland et al. v. Hopkins, 55 Wis. 387, 13 N. W. 225. 24 Andrews v. Hawley, 26 Law J. [Exch.] 323; see Cotterell v. Jones, 11 C. B. 713; Wood v. Hopkins, 2 Pennington, 689; Campbell v. Kincaid, 3 Mon. 68. |