answer in writing has been obtained to a written statement as will unquestionably sanction the attorney in his subsequent proceedings; and still if there should be any doubt upon the result, the client should in the presence of a respectable and disinterested third person, be requested deliberately to read the statement and opinion, and then in writing reciting that a case has been stated and opinion obtained, direct precisely what shall be done. This was stated to be the duty of an attorney by Lord Tenterden, and also accords with the opinion of one of the most eminent conveyancers and equity counsel of the present day, as regards the duty of an attorney, in taking an opinion upon a title or upon the expediency of a Chancery suit. An opinion of counsel upon an imperfectly stated case will very frequently mislead, although such opinion might be perfectly correct in itself. As regards this part of the duty of professional men, the observations of Lord Stowell are strongly in point, especially when the suit or proceeding is on behalf of illiterate or ill informed persons. "The proctor has in these cases something of a public "as well as a private duty thrown upon him, something that in "such cases he owes to the fair administration of justice as well as to the private interests of his employers. The interests "propounded for them ought in the proctor's own apprehension "to be just, or at least fairly disputable; and when such inter"ests are propounded, they are not to be pursued per fas et “nefas.” (v) 66 CHAP. XI. OF A LEGAL RETAINER AGENT. When it is the duty of the principal attorney or solicitor himself to and not to de Another hint may be useful, as well to clients as to professional practitioners, namely, to have it understood and expressly stipulated, that matters of importance, and especially of negociation, where the skill and experience of a principal conduct the attorney may be most important for success, that such prin- proceeding, cipal attorney should himself conduct the whole or a certain legate to a part of the proceeding, and not hand it over to a clerk or third clerk. person to transact, as is too frequently, and culpably the case, and by which an otherwise successful result may be marred. Indeed, without any such stipulation, it appears from the observations of Lord Stowell upon the duty of a proctor, to be the duty of the principal attorney or solicitor himself so to act; for his lordship said, "I adhere to the opinion I have expressed, that where an intercourse for such a purpose as the "definitive settlement of a claim is to take place, it is most "effectually conducted by the proctors themselves, and not by (v) Case of the ship Frederick, 1 Haggard's, R. 222, CHAP. XI. RETAINER OF A LEGAL AGENT. Conduct of an citor or proc tor, with re ciations. "their clerks; they have both a personal and legal weight, and 66 an authority that can better support them against overweening pretensions; and there is a direct responsibility "belonging to them highly proper to intervene in any point so "extremely important as the proposed final adjustment of a 66 cause;" and in that case he made the proctor pay all the costs, in consequence of his neglect of duty in that and other respects. (w) In negociations between solicitors of known integrity and attorney, soli honour, there will be no danger from an interchange of candour and liberality; but, unhappily, there is too frequently great spect to nego- risk of the want of reciprocity in candour; and, consequently, unless the honour of the opponent be well known, no communication of facts should be made that could be ungenerously taken advantage of injuriously to the client, even though expressed to be made without prejudice; (2) but, on the other hand, we have an excellent practical lesson from the same great judge, Lord Stowell, upon ethics and moral conduct to be observed by all practitioners, or they may themselves personally suffer from a deviation; namely, "That not only is a practitioner "bound not to stifle evidence or to instruct witnesses when "examined not to commit themselves, or in other words not to "tell the whole truth. But, moreover, that where a meeting "is professedly held for amicable arrangement, and the parties "are personally produced for the purpose of fair agreement and "to prevent litigation, it is contrary to the purpose of such a "meeting to resist fair disclosure of all facts leading to a just "conclusion, or to suppress facts without a knowledge of which "real justice is unattainable; for men ought not to come to "such a meeting as to a catching bargain, but in the full spirit " of equitable adjustment;" and as the proctor in that case had violated that rule of professional conduct, Lord Stowell decreed that he should pay all the costs. (y) CHAP. XI. RETAINER OF A LEGAL AGENT. secure a bind description of business is, that as soon as he has prevailed on another party to enter into any arrangement beneficial to his client, he should instantly on the spot, reduce into the form of a short but proper preliminary agreement, if he have not (as is advisable) already a proper form prepared, (2) and have it signed, ing written least upon further consideration, the other party should, al- or security for though dishonourably, attempt to fly from his engagement, and his client. insist on terms more favourable to himself. (a) engagement, Amongst other devices to increase expences, and acquire Impropriety of additional profits by unjust means, no expedient has been more increasing expenses by any successful amongst a few disreputable individuals than split- means. ting what might have been effected in one entire loan, into several transactions, and causing several mortgages or several grants of annuity with several deeds, to be executed. The numerous reported decisions under the Annuity Act, evince how often, in answer to an application for an advance of one, two, three, or more thousand pounds, the answer is, I have no one client who can advance that sum, but 1 have four or five who will advance about 1000l. each; but then he will have a separate security for himself; and accordingly the entire sum will be advanced on one, two, three, or more sets of deeds, with a repetition of charges for attendance, &c., as if the transactions had been entirely distinct; (b) and although in these cases sometimes the Court will set aside the warrant of attorney, especially where the grantee is contaminated in the transaction; yet, even then he may in general recover back the principal sum, and interest at the rate of 51. per cent.; so that he sustains in effect no loss in consequence of his attempt to impose hard terms, excepting that he may have to pay the costs of the motion. dite. Perhaps next to the duty to take due care that the principal Duty to cxpeproceeding and the steps depending thereon shall be accurately taken, Expedition is of paramount importance. The legislature and the courts are constantly striving to perfect that object; but such endeavours are sometimes counteracted by attornies in low practice; so that under the pretence of courtesy to the opposite attorney or his client (but which ought never to be shewn to the injury of the employer), or on some (2) It would be found advantageous for solicitors to have ready prepared, with blanks for names, &c., every description of agreement relating to ordi nary bargains, especially those relating to leases, and so full in the stipulations as to require reduction rather than en- (a) Ante, 1st Part, 294, note (b), and (b) 1 Bing. 234; 8 Moore, 109; S. C. 4 Bing. 26. RETAINER OF A LEGAL AGENT. CHAP. XI. other flimsy ground, some causes are not brought to a termination as soon as they ought; and the consequence is, not merely the increase of fees, for successive refreshers, term fees, &c., but it too frequently occurs, especially in Courts of Equity (where the parties are often numerous,) that pending the delay, by intervening marriages, births, deaths, bankruptcies, insolvencies, and different other events, it becomes necessary to revive the suit and introduce fresh parties, and so that not unfrequently a final decision is not obtained until the second or third generation after the death of the party who originated the suit. That solicitor, whose practice first puts his client in possession of the fruits of the proceeding, is obviously to be preferred, whilst the tardy solicitor is as injurious to his client, as to his profession, who are by the vulgar indiscriminately calumniated as well as the law itself, in consequence of such misconduct of a few inferior individuals. (b) Moreover, as soon as the proceeds have been recovered, the attorney should immediately hand over the amount to his client, or at least the balance, after deducting his own reasonable fees; a just proceeding, which will always insure the approbation and recommendation of the client. Stipulations for remunera tion out of the usual course, illegal. In general respectable attornies or solicitors make no express stipulation with their clients relative to remuneration; and at most, when the client's circumstances and the result are doubtful, and the proceeding is expected to be expensive, he will require an advance to cover expenses, and which he is entitled to demand, (c) or the guarantee of a third person, which (b) Too many instances of this culpable indolence, or, it is to be feared, want of principle, have occurred: one is well known and authenticated. An attorney, on the marriage of his son, gave him 500l., and handed him over a chancery suit, with some common law actions. About two years after the son asked his father for more business. Father; Why I gave you that capital chancery suit and the actions, and I hear you have got a great many new clients; what more can you want? Son: Yes, father, but I have wound up the Chancery suit and given my client great satisfaction, and he is in possession of the estate. Father: What! you improvident fool! that suit was in my family for twenty-five years, and would have continued so as much longer if I had kept it; I shall not encourage such a fellow. Sequel: The father died a few years after, comparatively poor, having worn out nearly all his clients, and being despised by every one; the son honourably con ducted his practice for fifteen years, and has now retired, residing upon his purchased estate respected and esteemed by all. If a physician were detected in purposely prescribing injurious or inefficacious medicine, in order to protract his patient's illness, and to obtain an accumulation of fees, what would be the deserved censure of mankind! and yet he might perhaps better excuse himself than the lawyer, on the ground that the illness was occasioned by the profligacy or intemperance of the patient, and that his suffering for a time might teach him future temperance, besides benefiting the profession. (c) Per Bayley, J. in Wadsworth v. Marshal, Exch. 2d June. A.D. 1832, MSS. It was his opinion that an attorney was entitled to insist that he should be supplied with the money necessary to carry the cause to trial, not only to the amount out of pocket, but the other expences. And see Hoby v. Built, 3 Bar. & Adol. 350; Rowson v. Earl, 1 Mood. same. CHAP. XI. RETAINER AGENT. should be in writing, expressing the consideration, and properly framed. (d) But an attorney cannot legally take a pro- OF A LEGAL spective mortgage as a security for future costs. (e) In order to secure confidence and despatch, the client should spontaneously offer an advance of money, or such guarantee, when he apprehends that the attorney would prefer having the Any arrangement respecting the remuneration for trouble and expences, when there is mutual confidence, usually waits till the completion of the suit or other business, although the better opinion is, that an attorney may refuse to proceed without advance of cash, provided he give due notice of his requiring the same. (f) At all events, at the termination of the suit, the fees and costs should (unless to be paid by the opponent,) be promptly and readily paid by the employer, except there has been such gross negligence or misconduct, as to have been prejudicial to the full extent of the claimed costs, (g) or the charges be for unnecessary and useless business, (h) or excessive. In the latter case, if there be any taxable claims or charges for business done in a suit, the bill must be delivered a month before the commencement of any action to recover such fees, and pending that month, or at any time after, before the commencement of an action, the bill may be taxed; (i) or if not taxable, an adequate tender should be made. Any stipulations by the attorney, that his remuneration shall depend on the event of the cause, would before the recent act have rendered him an incompetent witness in support of the proceeding. (k) And no attorney or solicitor can legally or effectually stipulate to have part of the estate or money to be recovered, in lieu of ordinary costs, as that would amount to the offence of champerty, and, perhaps, induce the Court to strike him off the rolls. (1) Nor is it legal for a plaintiff's attorney to & Mal. 538, overruling Sayer 173, and other cases in Tidd's Practice, 9th edit. 86, 87. The cases in Equity, 14 Ves. 196, 271; 1 Swans. 1; 3 Swans. 93, scem to establish that a solicitor must proceed without funds; but semble, it would now be ruled otherwise. (d) Barker v. Fox, 1 Stark. Rep. 276; Hollings v. Gregory, 1 Car. & P. 627. (e) See several cases, Chit. Eq. Dig. tit. Solicitor and Client, IV; and even as to antecedent costs, a mortgage is not conclusive, nor prevents taxation. 3 Young & Jer. 230. (f) Hoby v. Built, 3 Bar. & Adolp. 350; Wadsworth v. Marshall, 2 June, 1832, MSS., ante, 26, n. (c); Rowson v. Earl, 1 Mood. & Mal. 538. (g) Hill v. Featherstonhaugh, 7 Bing. 569; Templar v. M'Lachlan, 2 Bos. & Pul. New Rep. 136. (k) Hill v. Featherstonhaugh, 7 Bing. 569. (i) 2 Geo. 2. c. 23, s. 23, and the recent clear decision that the same extends to all business at law or in equity transacted even in a county court, or upon a plaint as replevin, and is not confined to the superior courts or courts of record. Wardle v. Nicholson, 1 Nev. & Man. Rep. 353. (k) 3 & 4 W. 4. c. 42, s. 26. (1) As to Champerty and Maintenance, see 4 Bla. Com. 134, 5; Penn's case, 2 |