Curtis v. Richards , 4 Idaho 434 ( 1895 )

MORGAN, C. J.

This is a proceeding under section 3999 of the Revised Statutes of Idaho. The original action from which this arose was one wherein Richard Cable was plaintiff and William B. Knott was defendant, then pending in the district court in and for Ada county, in which the petitioners, who are attorneys at law, were employed by the defendant to act as his attorneys in defense of his rights in said suit, and they acted as such from the twenty-fifth day of January, 1894, until the fifteenth day of February, 1895, when defendant served a notice upon said attorneys that he discharged them as attorneys in said action, to which notice petitioners replied that, as a condition precedent to said discharge, they required him to pay their fees in said cause, or secure the same. Thereupon the defendant in said cause filed a motion asking that petitioners be discharged by order of the said court. The allowance of this motion was resisted by the petitioners for the rea.sou that defendant had not shown any dereliction of professional duty on the part of the said attorneys, in the defense of •said suit, nor had he paid or secured the fees of said attorneys for services rendered in said cause. Upon the hearing of said ■motion the district court finds as follows: “That there has been (1) no dereliction of duty on the part of said attorneys in defense of said cause; (2) that there exists between said defendant and his said attorneys such a condition of mutual ill-will as will prevent them from acting together properly in the confidential relation of attorneys and client; and ordered, that said motion of said defendant to change his attorneys of ■record be granted” — to which order defendants excepted, and bring said matter to this court on a writ of error.

, Counsel for respondent contends that this court has no jurisdiction to review^ the action of the court below herein. ■Section 3999 of the Revised Statutes of Idaho, gives the dis■trict court authority to order a change of attorney upon the application of the client, after notice to the attorney at any time before judgment or final determination. In this case the 'deféndant filed a motion asking' for an order changing his attorneys, and substituting M. C. Athey as the attorney for s.aid defendant. This motion, as is stated above, was resisted for the reasons given. This, then, became a special proceeding for the removal of said attorneys, in which the defendant in. the ■court.below was thé proponent and these attorneys were defendants. By the provisions of subdivision 1 of section 4807 an appeal may be taken to the supreme court from a final judgment in an action or special proceeding commenced in the court in which the same is rendered. As to these parties (the attorneys) this judgment is final; they are dismissed from this case absolutely. The petitioners therefore have a right to .bring their cause to this court for review.

It is further contended that the attorney is simply the agent of his client. To a certain extent, this is true; but he is more than an agent. He is also an officer of the court, and within Ms sphere and in the line of Ms special powers he is as independent as the judge of the court, and has not only Ms duties and obligations to the court and to his client, but he has rights and powers entirely different from and superior to an ordinary agent. An agent receives- his orders from, and is directed absolutely and wholly by, his principal, in the management of his business. On the other hand, the business of the client which is submitted to his attorney is managed entirely by the attorney, and the client is advised and directed by him. As to the business committed to his care, the attorney is the sole manager and director. Hence, his responsibilities are-much greater than those of an ordinary agent. His reputation! and his abilities are at stake to some extent in every case he undertakes. Hence, the law says the client shall not discharge him arbitrarily in the midst of the performance of his duties. But, if you desire to change attorneys, you may do so with the consent of the court in a proper proceeding. As in this case the court examines into the reasons for said change, and when he ascertains that the attorney has prosecuted his client's business to the best of his ability and with fidelity to the trust imposed upon him, he so finds. Then, if the substitution is made, there is no reflection upon the ability or faithfulness of the attorney. As to his right to fees or security for the same as a condition precedent to his discharge, the law says — and this court is in accord with this view — “that a party has no.right arbitrarily to change his attorney without paying or securing fees earned, and the original attorney is not bound to consent to a substitution, or deliver papers upon which he has a lien, until the amount of his just demands is ascertained by a court or referee, and paid or secured.” (Weeks on Attorneys, secs. 250, 267, and eases there cited; Mechem on Agency, sec. 856; In re Herman, 50 Fed. 517; Ronald v. Association, 30 Fed. 228; Butchers’ Union Slaughter-house etc. Co. v. Crescent City Livestock etc. Co., 41 La. Ann. 355, 6 South. 309; Gardiner v. Tyler, 36 How. Pr. 63.) The substitution, however, of attorneys, is a matter largely in the discretion -of the court, and we do not say that there may not be a case in which attorneys may be discharged without paying or securing fees already earned. We do say that the rule of law is that fees. or commissions already earned must be paid or secured before substitution can be had. If this is impossible in any given case, this fact must be shown by the party moving the discharge and substitution, and then it should appear that justice to the client or attorney demands the change. We do not say that there does not exist in this case such a state of facts as renders a change necessary and proper, and therefore do not condemn the judgment of the court below; but this change should not be made without first paying or securing the fees earned, unless, as is stated, the court below should deem this impossible or impracticable. For these reasons the judgment of the court below is reversed, and the cause remanded for further proceedings in accordance with this opinion.

Huston and Sullivan, JJ., concur.