Marquam v. Vachon , 7 F.2d 607 ( 1925 )

HUNT, Circuit Judge

(after stating the facts as above) >

A contract by which an attorney is employed is of a character which distinguishes it from most contracts of employment. The distinction has recently been commented upon in Martin v. Camp, 219 N.Y. 170, 114 N.E. 46, L.R.A.1917F, 402, where the New York Court of Appeals, after citing earlier cases in unanimous opinion, said:

“These cases, and many others that might appropriately be cited to the same effect, establish that, while so far as the attorney is concerned the contract is entire, and the attorney cannot recover unless he completely performs, the client, with or without cause, may terminate the contract at any time. The substance of the rule declared in these cases was expressed by Judge Hiscock in Re Dunn, supra, 205 N.Y. 398 [98 N.E. 914, Ann.Cas. 1913E, 536]. In that case it was said: Tt is well established, in the case of the client, that he may at any time for any reason which seems satisfactory to him, however arbitrary, discharge his attorney.’ ”

The relationship of attorney and client rests upon such confidential and personal elements that it is wise that dissolution may be had at the will of the client, and the decisions go to the extent of holding that the right of the client to dismiss the attorney, whether with or without cause and at any time, is an implied condition of the contract of employment. 2 R.C.L. 957. Therefore dismissal of the attorney, arbitrarily or without cause, does not constitute a breach. The Court of Appeals of New York refers to a number of cases which take a different view, but our inclination is in accord with those which sustain the right of termination at the will of the client, and which hold that, where the client exercises his undoubted right to settle the suit without consulting his attorney, the attorney cannot recover in damages for a breach of contract, but is limited to recovery for the reasonable value of services rendered. Martin v. Camp, supra; Wright v. Johanson, 132 Wash. 682, 233 P. 16.

In the present case, inasmuch as the client had a right to settle and compromise the actions, the averment that the compromise and settlement were made by Vachon for the purpose of defeating payment of attorney’s fees is not material. There is no allegation that the settlement itself was not real or proper. The client, in settling without consulting his attorneys, but exercised a right.

Settlement, however, does not relieve the client of liability for the reasonable value of services rendered by the attorney up to the time of the settlement and the filing of the stipulation 'for dismissal. The remedy of the attorneys is upon a quantum meruit, and not upon the contract.

The judgment is affirmed.