In re Prospect Ave. , 92 N.Y. Sup. Ct. 257 ( 1895 )

O’BRIEN, J.

In denying the motion for a substitution, the learned judge below stated that he did not “think that the moving party is entitled to substitution, as a matter of right, in this case. Some misconduct should be shown on the part of the attorney.” If what had been here sought was an unconditional substitution, the conclusion thus arrived at would have been right. The application, however, was not for an unconditional substitution, but for a substitution, and this the court had the right to grant upon such terms as were just. The question presented is, then, was the client, upon the showing made, entitled to any relief?

As held by this court in the case of Pierce v. Waters, 10 Wkly. Dig. 432 (headnote):

“Upon an application by a party for substitution of another attorney in place of his attorney of record, ordinarily the court will see that the attorney is protected as to his fees; yet, where the attorney’s conduct has been improper or neglectful, the court will deny this protection, and direct an unconditional substitution, leaving the attorney to his action for his fees."

This clearly points out what we think is the distinction to be observed upon motions of this character. If an unconditional substitution is asked for, this will not be granted unless such misconduct on the part of the attorney is shown as would deny him the protection which the court would otherwise afford him for his fees or for any other lien that he might have. Upon this application, even though we do not go to the extent of holding that the act of the attorney in borrowing from his client, a widow, without security, and without having, as shown by the results, the ability to pay, the sum of $3,000, necessitating on her part a resort to remedies to collect the judgment, was so wrongful as to amount to misconduct and bad faith, yet we think it clear that the delicate and confidential character of the relations which should exist between attorney and client were by such act necessarily destroyed, and that the client, under the circumstances, was entitled to some relief. We think, apart from the question of misconduct or bad faith, that a client, subject only to the payment of the attorney’s fees in a proper case, or securing them if they cannot then be fixed and determined, has the right, without assigning cause, at any point in a suit or proceeding, to change his or her attorney. And this view, we think, finds support in the cases of Ogden v. Devlin, 45 N. Y. Super. Ct. 631; Prentiss v. Livingston, 60 How. Pr. 380; Texas v. White, 10 Wall. 483. In Ogden v. Devlin it was held that a client has the right, of his own volition, to change his attorney of record, and this, though no complaint is made against the attorney, and though the object for which the benefit of his services was required has been accomplished; but that the condition of granting substitution in such a case is the payment or securing in full for his services as such attorney and counsel. And as said in Texas v. White:

“The relations between counsel and client are of a very delicate and confidential character, and, unless the utmost confidence prevails between them, the client’s interest must necessarily suffer.”

While, therefore, the client has a right to a substitution at any time upon payment or the securing of the attorney’s fees,—which is but another way of saying that such right is conditional,—there is the other right, arising from the misconduct of the attorney, which, when shown to the satisfaction of the court, is unconditional. In one case a substitution is granted as a matter of course, upon terms; and in the latter, for misconduct, the substitution is unconditional.

There is no force in the suggestion of the respondent that the written power constituted him an attorney in fact with an interest, and that, therefore, the client could not upon any terms substitute another in his place. There is nothing in the power itself which states or indicates that he was to be the attorney in fact; and the fair construction of the instrument is that he was retained and given all the power that an attorney ordinarily has in such a proceeding, the purpose of it being definitely to fix the amount of his compensation, which could have been provided for just as well by parol, but which the parties, for greater certainty, reduced to writing. In other words, the right to receive the compensation mentioned in the retainer is nothing more than the ordinary right which an attorney at law has by way of a lien upon the case and papers and money received for his costs and compensation. The fact that such attorney directed his clerk to appear for him in the proceeding does not prevent the client obtaining any relief, because there was no authority given him to delegate to another the right to appear for Mrs. Dodin in the proceeding; and, upon his authority ceasing, that of the clerk would fall with it, there being no obligation upon the part of Mrs. Dodin to pay the clerk.

We think, therefore, that, without assigning any reasons, Mrs. Dodin was entitled to a substitution. We do not decide that, by reason of the misconduct of the attorney in borrowing from her, she is entitled to an unconditional substitution, but that, subject to proper provision to be made in the order for the compensation, to which he may be entitled, the order should be reversed, and the application for a substitution granted. We cannot, however, overlook the fact, which is not denied, that the attorney has $3,000 of her money, which is represented by the judgment she, obtained against him, and to that extent he is secured. We think that the provision in the order should be that either party should have leave to apply for a reference, now or hereafter, to determine the amount of the attorney’s lien, as against which she should have the right to offset the $3,000 borrowed from her, she only being' required to pay him any additional amount that may be found to be due him; and, if the amount due him for compensation is less than the amount of the judgment, that he should be credited with that sum upon the judgment.

Order reversed accordingly, and the application for substitution granted, with $10 costs and disbursements.