General scope and duration of authority of attorney. Eden, 2 Johns. Cas. 121; Bogardus v. Livingston, 7 Abb. 428; S. C., 2 Hilt. 236; Tripp v. De Bow, 5 How. 114; S. C., 3 Code R. 163; Miller v. Miller, 37 How. 3. And in the course of a suit, the practice of the courts require a great number of facts and proceedings to be proved by affidavit, which the attorney in the cause, or his managing clerk, can, generally speaking, only make. For these reasons, the courts require that the attorney shall always be at his office, or have some competent person there during office hours. An attorney's clerk during the absence of the attorney represents him as to all the ordinary business of the office. Power v. Kent, 1 Cow. 211. And the service of a notice is sufficient if made on him. Anonymous, 1 Caines, 73; Chapman v. Raymond, 8 Johns. 360. An attorney who undertakes the conduct of an action impliedly stipulates to carry it to its termination, and he is not at liberty to abandon it without reasonable cause and reasonable notice. Harris v. Osbourn, 2 Cromp. & Mees. 629; 4 Tyrw. 445; Whitehead v. Lord, 7 Exch. 691; S. C., 11 Eng. L. & Eq. 587. And if he wrongfully refuse to proceed, and break his contract in this respect, he will be liable to an action for it. Hoby v. Built, 3 B. & Ad. 350. Section 9. General scope and duration of the authority of an attorney. The attorney's authority is two-fold, viz., expressed in the warrant or implied by law. Co. Litt. 52. Co. Litt. 52. Besides having the conduct of the more formal proceedings, an attorney has a right to exercise his discretion in all the ordinary occurrences which take place in relation to a cause. He may make stipulations, waive technical advantages, and generally assume control of the action. Gorham v. Gale, 7 Cow. 739; Walradt v. Maynard, 3 Barb. 584; Steward v. Biddlecum, 2 N. Y. (2 Comst.) 103. And a client has no right to control him in the due and orderly conduct of a suit. Anonymous, 1 Wend. 108; Read v. French, 28 N. Y. (1 Tiff.) 285. Under the general authority of an attorney he may discontinue the cause (Gaillard v. Smart, 6 Cow. 385); commence a second action after being nonsuited in the first for want of proof (Scott v. Elmendorf, 12 Johns. 317); waive a judgment by default (Latuch v. Pasherante, 1 Salk. 86; Anonymous, 1 Wend. 108), and direct the sheriff as to the time. and manner of enforcing an execution. Gorham v. Gale, 7 Cow. 739; Corning v. Southland, 3 Hill, 552. An attorney cannot settle a suit and conclude the client in relation to the subject in Responsibility of attorney to client. litigation without special authority. Shaw v. Kidder, 2 How. 244; East River Bank v. Kennedy, 9 Bosw. 543. Neither can he recover of his client fees of counsel associated with him, without proving that he employed such counsel at the client's request, or with his sanction paid such fees. Cook v. Ritter, 4 E. D. Smith, 253. In general, an attorney, once appointed, is vested with all necessary authority for the management of the case intrusted to him, and for carrying into effect the orders and judgments of the court. If he enters into stipulations pertinent to the matter intrusted to him, he can thereby bind his client. If, in such matters, he acts without special authority, the court will still enforce his acts against his client in the particular business of his employment. If, in so doing, his client is seriously damaged, and he is unable to respond in damages, the court will relieve the party injured, preserving the other party from loss. People v. Mayor, etc., of New York, 11 Abb. 66. Under a general retainer the authority of the attorney ceases when the suit is brought to a final judgment. Walradt v. Maynard, 3 Barb. 584; Adams v. Fort Plain Bank, 23 How. 45. See S. C., 2 Trans. App. 234; 36 N. Y. (9 Tiff.) 255; Mygatt v. Willcox, 1 Lans. 55. His authority is also terminated by the death of his client, and he is in no sense the attorney of the successors in interest. Putnam v. Van Buren, 7 How. 31. Until changed, the authority of the attorney continues on a writ of error or appeal, and service must be made on him and not on the party. Adams v. Fort Plain Bank, 23 How. 45; Rule 4, Court of Appeals. Section 10. Responsibility of attorney to client. An attorney is bound to exercise a competent degree of care, skill and fidelity in the discharge of his professional duties, and the law will hold him strictly responsible to his client for any detriment or losses arising from the want of these qualifications. An attorney is liable for gross blunders and negligence in the management of the business with which he is intrusted, for "every person who enters a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill." Lanphier v. Phipos, 8 Carr. & P. 479. The exact degree of skill required is not easily determined; but, in general, "the cases appear to establish that he is liable for the consequences of ignorance or non-observance of the rules of practice of the court, for the want of care in the preparation of the cause for trial or of attendance Responsibility of attorney to client. thereon with his witnesses, and for the mismanagement of so much of the conduct of a cause as is usually and ordinarily allotted to his department of the profession; while, on the other hand, he is not answerable for error in judgment upon points of new occurrence or of nice or doubtful construction." Godefroy v. Dalton, 6 Bing. 468. And where he acts in good faith, and to the best of his skill and knowledge, he will be protected. Gilbert v. Williams, 8 Mass. 51. When, however, an attorney disobeys the lawful instructions of his client, and a loss ensues, for that loss the attorney is responsible. Ib. Cox v. Livingston, 2 Watts & Serg. 103; Wilcox v. Plummer's Exrs., 4 Peters, 172. But it is a fair presumption that he acts according to the instructions of his client, unless in a case of such gross negligence that a violation may be inferred Holmes v. Peck, 1 R. I. 242. An attorney cannot serve, professionally, both parties to a controversy, and any unfaithful dealing with his client will deprive him of all right to compensation for his services. Herrick v. Catley, 1 Daly, 512; S. C., 30 How. 208; Currie v. Cowles, 6 Bosw. 452. The appearance of an attorney without authority has been held to be a nullity (Bean v. Mather, 1 Daly, 440); and for such gross violation of duty he is liable to be disgraced and punished. Brown v. Nichols, 42 N. Y. (3 Hand) 26; 9 Abb. N. S. 1. If, however, a defendant is regularly brought into court, and an attorney of the court appears for him, his acts are binding upon the party, until the attorney is superseded, unless collusion is shown, and the remedy of the party is against the attorney for acting without authority. Hamilton v. Wright, 37 N. Y. (10 Tiff.) 502; 5 Trans. App. 1; Blodget v. Conklin, 9 How. 442. The court has power to relieve a party to an action from a judgment or order obtained against him by reason of the negligence, ignorance or fraud of his attorney. Sharp v. Mayor, etc., of New York, 31 Barb. 578; S. C., 19 How. 193; affirming S. C., 9 Abb. 426; 18 How. 213; Elston v. Schilling, 7 Rob. 74; Quinn v. Lloyd, id. 538; S. C., 36 How. 378; 5 Abb. N. S. 281. See Bean v. Mather, 1 Daly, 440. Section 11. Attorney amenable to court for misconduct. The attorney is an officer of the court, and the court will exercise a supervision over the conduct of its officer, and insist upon his just and fair dealing with his client. Brotherson v. Consalus, 26 How. 213; Brock v. Barnes, 40 Barb. 521; Nesbit v. Lock Attorney amenable to court for misconduct. man, 34 N. Y. (7 Tiff.) 167; Hitchings v. Van Brunt, 5 Abb. N. S. 272; S. C., 38 N. Y. (11 Tiff.) 335. And in the exercise of this supervision will not suffer an attorney to misuse the process of the court. The 99 Plaintiffs v. Vanderbilt, 1 Abb. 193; S. C., 4 Duer, 632; 10 How. 324; Commissioners of Excise of New York v. Purdy, 36 Barb. 266; S. C., 22 How. 312, 506; 13 Abb. 434. An attorney who has received money for his client must pay it over at once or an attachment will lie against him; and this rule extends to moneys placed in his hands, in his professional character, for investment, as well as to moneys received by him in a suit or other legal proceeding. Barry v. Whitney, 3 Sandf. 696; S. C., 1 Code R. N. S. 101; In re Grant v. Chester, 17 How. 260; S. C., 8 Abb. 357. The punishments to which attorneys are subject for misconduct are removal from office, fine and imprisonment; besides being liable for damages at the suit of the party aggrieved. 2 R. S. 287, 288. In minor cases of misconduct the court will generally be satisfied with making the attorney pay the costs incurred by the parties by reason of such misconduct. People v. Bradt, 6 Johns. 318; Waring v. Baret, 2 Cow. 460; Boyce v. Bates, 8 How. 495. Attorneys are prohibited by statute from buying any bond, bill, note, book-debt, or thing in action, with the intent and for the purpose of bringing a suit thereon. 2 R. S. 288, § 71. The provisions of the above statute do not, however, apply to judgments. Brotherson v. Consalus, 26 How. 213. Attorneys, both at common law and under the Code, are disqualified from becoming bail, and the disqualification extends even to their clerks. Wheeler v. Wilcox, 7 Abb. 73; Miles v. Clarke, 4 Bosw. 632; affirming S. C., 2 id. 709; Craig v. Scott, 1 Wend. 35; Coster v. Watson, 15 Johns. 535; King v. Sheriff of Surrey, 2 East, 181; Laing v. Cundale, 1 H. Bl. 76. By rule 8 of the supreme court, attorneys are prohibited from being sureties in any undertaking. In an action brought by an attorney to recover for professional services, the defendant may show that the services were rendered worthless by the attorney's ignorance or negligence. Bowman v. Tallman, 40 How. 1; Bracey v. Carter, 12 Ad. & E. 373. See Runyan v. Nichols, 11 Johns. 547; Hopping v. Quin, 12 Wend. 517. On the other hand, the attorney or counsel does not guaranty the success of the suit, or the soundness of his Liability to adverse party-Compensation of attorney. opinions, or that they will ultimately be sustained on appeal. Bowman v. Tallman, 27 How. 212; 2 Rob. 385; S. C. affirmed, 40 How. 1; 41 N. Y. (2 Hand) 619(n). Section 12. Liability to adverse party. For the purpose of encouraging freedom of speech in the maintenance of an action, or in the lawful defense of their clients, the law does not hold an attorney answerable for any matter spoken by him, pertinent to the case in hand, and suggested in his client's instructions, although it should reflect upon another and even prove absolutely groundless. But, if he maliciously invents and mentions an untruth, not pertinent to the cause, he may be liable to an action at suit of the party injured. 3 Broom & Had. 25; Hodgson v. Scarlett, 1 B. & Ald. 232; Mackay v. Ford, 5 H. & N. 792. It is also the settled doctrine of the courts of this State, that words spoken or written in a judicial proceeding by any person (attorney or party) having a duty to discharge, or an interest to protect in respect to such proceedings, are absolutely privileged ; and no action will lie for such speaking or writing, however false, defamatory or malicious may be the words, provided the matter was material to the issue or inquiry before the court. Marsh v. Elsworth, 36 How. 532; S. C., 1 Sweeny, 52; Warner v. Paine, 2 Sandf. 195; Garr v. Selden, 4 N. Y. (4 Comst.) 91; 9 N. Y. Leg. Obs. 137; Hastings v. Lusk, 22 Wend. 410; Gilbert v. The People, 1 Denio, 41. Section 13. Compensation of attorney. By the English common law an attorney can maintain no action for his fees, which, in England, are given not as a salary or hire, but as a mere gratuity, which a counselor cannot demand without injuring his reputation. 3 Bl. Com. 28. The notion, however, that an attorney's fees are merely honorary has never been recognized in this State; and an attorney is entitled to recover a reasonable compensation for his services. Cagger v. Adams, 23 Wend. 57; S. C. affirmed, 26 id. 451; In re Paschal, 10 Wall. 483, and cases there cited. By the adoption of the Code all statutes establishing or regulating the costs or fees of attorneys in civil actions, and all the rules and provisions of law, restricting or controlling the right of a party to agree with an attorney, for his compensation, were repealed; and it was provided, that hereafter the measure of compensation shall be left to the agreement, express or implied, of the parties. But there may be allowed to the prevailing |