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guilty. He may. The section we propose permits him
to do so.
If he have derived his belief from the con-
fession of the accused, he should pause in assuming his
defense. The law gives to every man charged with
crime the benefit of the rule that his innocence is to be
presumed by his Judges until the prosecution have
established his guilt by proof beyond reasonable doubt.
Of this rule the advocate is the intermediate minister.
Notwithstanding his own conjectures, surmises, or
even belief as to the guilt of his client, he may not be-
come his judge, but is justified, if not bound, to enforce
its application to the inconclusiveness of the evidence
of guilt. He may do this the more readily, because
even the jury themselves are bound to secure to the
accused the benefit of its application. He may also
undertake to show the circumstances of his case, to
present the palliating circumstances of temptation, or
of provocation, or anything else that may affect the
moral quality of the action or determine the degree of
punishment. He may also, in civil cases, present de-
fenses recognized and provided by law, although he
may himself disapprove of the principle and policy of
the law. But here the advocate should stop. The law
and all its machinery are means, not ends; the purpose
of their creation is justice; and he who, in his zeal for
the means, forgets the ends, betrays not only an un-
sound heart, but an unsound understanding."

2. GENERAL RIGHTS OF ATTORNEY AND CLIENTCOUNSEL FEES, ETC.-An attorney has a lien for his costs upon a judgment recovered by him, which may be enforced upon giving notice to the adverse party not to pay the judgment until the amount of the costs be paid; and in some cases, where there has been collusion between the parties to cheat the attorney, the Court has required the client to satisfy them. But this practice is confined to some certain and fixed amount allowed to an attorney by statute, and is not extended to cases where an attorney or counselor claims a quantum meruit compensation for his services. In this State we have no statute giving costs to attorneys, and they must consequently recover for their services in the ordinary mode.-Ex Parte Kyle, 1 Cal., p. 331. And as to compensation of attorneys, see, further, Mansfield vs. Dorland, 2 Cal., p. 507; Carriere vs. Minturn, 5 Cal., p.

435.

3. RETAINING FEE IN ADVANCE.-An attorney is entitled to his retaining fee in advance, unless he stipulates to the contrary.-Covillaud vs. Yale, 3 Cal., p. 108. In a suit for compensation as attorney in a certain

proceeding, it is not competent to prove the value of the attorney's services in another proceeding. A person who is not a lawyer is an incompetent witness to prove the value of legal services.-Hart vs. Vidal, 6 Cal., p. 56. How receivers, authorized to appoint and retain counsel, and to stipulate that the compensation of such counsel shall be left to the discretion of the Court, should provide for the payment of such compensation. See Adams vs. Wood, 8 Cal., p. 306. In suits by attorneys to recover compensation for legal services, unskillful or negligent conduct or the skill employed in the case is an important inquiry. A suit may be won, and yet the attorney be guilty of great negligence, etc. Bridges vs. Paige, 13 Cal., p. 642.

NEGLIGENCE OF OR MISMANAGEMENT BY ATTORNEY.-What must be shown to establish negligence on part of attorney.-Hastings vs. Halleck, 13 Cal., p. 203. Where, through the fault of an attorney, judgment is rendered against the client, the latter has a remedy against the attorney, but the judgment remains undisturbed unless some fraud or collusion, etc., on the part of the attorney is shown.-Sampson vs. Ohleyer, 22 Cal., p. 210, and cases therein cited. As to bargains by an attorney with a client, of advantage to the former, protection of the client in such matters.-See Kisling vs. Shaw, 33 Cal., p. 425. For instances of gross mismanagement by an attorney, see Drais vs. Hogan, October Term, 1872.

4. EMPLOYING ONLY TRUTHFUL MEANS-SEEKING TO MISLEAD JUDGES.-See case of Fletcher vs. Daingerfield, 20 Cal., p. 427.

5. MUST PRESERVE THE SECRETS OF HIS CLIENT. Valentine vs. Stewart, 15 Cal., p. 387; Gallagher vs. Williamson, 23 Cal., p. 331; Risling vs. Shaw, 33 Cal., p. 425; People vs. Atkinson, 40 Cal., p. 284. What are not privileged communications.-Hager vs. Shindler, 29 Cal., p. 47; Satterlee vs. Bliss, 36 Cal., p. 489.

6. ESPOUSE THE CAUSE OF THE DEFENSELESS-DEFEND PERSONS ACCUSED OF CRIME.-It is part of the general duty of counsel to render their professional services to persons accused of crime who are destitute of means, upon the appointment of the Court, when not inconsistent with their obligations to others; and for compensation they must trust to the possible future ability of the parties. Counsel are not considered at liberty to reject, under circumstances of such character, the cause of the defenseless because no provision for their compensation is made by law.-Rowe vs. Yuba Co., 17 Cal., p. 61.

Authority of attorney.

283. An attorney and counselor has authority:

1. To bind his client in any of the steps of an action or proceeding, by his agreement filed with the Clerk, or entered upon the minutes of the Court, and not otherwise;

2. To receive money claimed by his client in an action or proceeding, during the pendency thereof, or after judgment, unless a revocation of his authority is filed, and upon the payment thereof, and not otherwise, to discharge the claim or acknowledge satisfaction of the judgment.

NOTE.-1. EXTENT OF ATTORNEY'S AUTHORITY.— As to the extent of an attorney's authority, and when it is presumed.-See Turner vs. Caruthers, 17 Cal., p. 431; Hayes vs. Shattuck, 21 Cal., p. 51; Ricketson vs. Compton, 23 Cal., p. 636; Holmes vs. Rogers, 13 Cal., p. 191; Wilson vs. Cleaveland, 30 Cal., p. 192; People vs. Mariposa Co., 39 Cal., p. 683.

2. ATTORNEY IN FACT, BUT NOT ATTORNEY AT LAW.-An attorney in fact, who is not an attorney at law, is not authorized to sign for his principal a complaint as "plaintiff's attorney." An action so instituted is void, as if commenced by an entire stranger without authority.-Dixey vs. Pollock, 8 Cal., p. 570.

3. POWER TO BIND CLIENT.-Hart vs. Spaulding, 1 Cal., p. 213; Holmes vs. Rogers, 13 Cal., p. 191. The agreement of an attorney to bind a client in proceedings at law must be in writing and filed with the Clerk, or entered on the minutes.-Smith vs. Pollock, 2 Cal., p. 92. An agreement of counsel for a continuance, not reduced to writing, will be disregarded by the Court.Peralta vs. Mariea, 3 Cal., p. 185. An attorney for a party in a proceeding to determine conflicting claims to town lots cannot, after the Board of Trustees of the town have awarded the lot to his client, pass the client's right by a stipulation in the case for the entry of a void judgment.-Ryan vs. Tomlinson, 31 Cal., p. 11. A client cannot dismiss a suit if his attorney of record oppose it.-Board of Commissioners vs. Younger, 29 Cal., p. 147. If a party to a suit dies after judgment, his attorney has no power to further act for him, and could not even give notice of a new trial.-Judson vs. Love, 35 Cal., p. 463.

4. NOTICE TO ATTORNEY IS NOTICE TO CLIENT.-A client is charged with notice of all errors or misconduct

Amended 1893-4.

in the course of the trial, etc., which were known to his
attorney.-Hoogs vs. Morse, 31 Cal., p. 129. Notice
to an attorney is notice to the client, and he is bound
thereby.-Bierce vs. Red Bluff Hotel Co., 31 Cal., p.

160.

attorney.

284. The attorney in an action or special proceed- Change of ing may be changed at any time before judgment or final determination, as follows:

1. Upon his own consent, filed with the Clerk or entered upon the minutes;

2. Upon the order of the Court or Judge thereof, upon the application of the client, af solite to the alloway.

NOTE.-AUTHORITY OF ATTORNEY TO ACT-POWER OF COURT TO PASS UPON THEIR AUTHORITY.-In the case of The Commissioners of the Funded Debt of the City of San José vs. Younger, 29 Cal., p. 147, the Commissioners had retained counsel to bring the action. A trial had been had, resulting in favor of the Commissioners, and a new trial granted. At that stage of the case the Commissioners, without substituting another attorney of record, and without the knowledge of their attorney of record, compromised the action and authorized the attorney of defendant, in writing, to appear for them and dismiss the action, which he did; but the motion was resisted by the Commissioners' attorney of record, upon the ground, among others, that he was still the attorney of record of the Commissioners, and as such entitled to manage and control the case until displaced and another substituted of record. The Court, nevertheless, dismissed the action, and the Supreme Court reversed the judgment, holding, in effect, that where a party retains an attorney to bring or defend an action, the attorney has the right to control and manage the case until he has been superseded by another in the manner dictated by the tenth section of the statute in relation to attorneys and counselors, which provides that an attorney in an action or special proceedings may be changed at any time before final judgment: First-Upon his consent, filed with the Clerk or entered upon the minutes. Second-Upon the order of the Court, or Judge thereof, on the application of the client. The question there was, whether the Court was bound to recognize the attorney of record as possessing the right to manage the case, or could at

20-VOL. I.

pleasure ignore him altogether and recognize another as having that right. But the question here is, whether the Court has the power to inquire as to the retainer of the attorney upon the suggestion of the client that he has abused the license of the Court and brought the action without any authority. Upon such a question we have no doubt as to the power. Attorneys are the officers of the Court, and answerable to it for the proper performance of their professional duties. They appear and participate in its proceedings only by the license of the Court, and if they undertake to appear without authority from the party whom they profess to represent, the act is an abuse of the license of the Court, which, upon the application of the supposed client, the Court has the power to inquire into and correct summarily. Otherwise the very fountain of justice might become polluted, and a license to stir its waters become a license to defile them. An attorney's license is prima facie evidence of his authority to appear for any person whom he professes to represent, but if the supposed client denies his authority, the Court may require him to produce the evidence of his retainer under the supervisory power which it has over its process and the acts of its officers, and that, too, in the mode which was adopted in this case, as was suggested in Turner vs. Caruthers, 17 Cal., p. 431. It has also been held that the Court may require an attorney to show special authority upon the application of the opposite party, when justice requires it. McKiernan et al. vs. Patrick et al., was an action by McKiernan and Anderson as the indorsees of two promissory notes. The defendants held a set-off against McKiernan, and made a motion for an order upon the plaintiffs' attorneys to produce their authority for using the name of Anderson, which motion was supported by an affidavit to the effect that the notes in suit were the exclusive property of McKiernan, against whom they held a set-off, that Anderson was a myth, or if not, his name had been fraudulently used, without authority, for the purpose of avoiding the defendants' set-off as a defense to the action. The plaintiffs' attorney showed cause, and informed the Court that they received the notes from McKiernan, with instructions to sue as had been done; that they had had no communication with Anderson, and had no personal knowledge of him, but they understood that he was a friend and near neighbor of McKiernan in Alabama; that since the motion was made they had written to both of the plaintiffs for information, but had received no answers. The Court denied

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