the judgment, to which effect would have been given according to their intention without inquiring into the consideration.

* * *

The power of an attorney is not co-equal, co-extensive, or the equivalent of that of the client. He is, as has been said in numerous decisions of this court, a special agent, limited in duty and authority to the vigilant prosecution or defense of the rights of the client. Within the limits of that professional action which may be necessary for the conduct of the proceedings in the course of pending suits, and of direction to ministerial officers in the issue, levy and return of executions, the attorney may have large discretionary powers given to him, that he may perfect and promote the rights and interests of the client. But entering into bargains or contracts by which the debt of the client is released or discharged without full payment in money, is not one of his general powers. If the power is not specially conferred, the validity of all such bargains or contracts, so far as they affect the client, depends upon his ratification. He may ratify or repudiate as he may believe most conducive to his interest. Kirk's Appeal, 87 Pa. 243, 30 Am. Rep. 357; Levy v. Brown, 56 Miss. 83; Maddux v. Bevan, 39 Md. 485; Moye v. Cogdell, 69 N. C. 93.

All who deal with an attorney or other agent must ascertain the extent of his authority. If they do not inquire, they can claim no protection because they indulged suppositions or conjectures, reasonable or unreasonable, that the agent had the authority he was exercising. Gullett v. Lewis, 3 Stew. 23. * * * Whoever has dealt, or may in this state deal with an attorney, can have no right to rely on his exercise of any other power, unless it is specially conferred. Whether it has been especially conferred, they must, at their own peril, ascertain. The acceptance by the attorney of a less sum than was due upon the judgment did not operate its satisfaction; and the transfer or assignment of the judgment was in excess of his authority.

The decree of the chancellor must be reversed."

8 "An attorney by virtue of his retainer can do anything fairly pertaining to the prosecution of his client's cause, and the protection of his client's interest involved in the suit; but he cannot, under such general authority, surrender or compromise away his client's substantial rights. To do it requires the express authority of the client, or his agreement thereto. * * Where an attorney makes a compromise or settlement of a case without any authority so to do, it may be set aside and vacated, upon application of his aggrieved client seasonably presented." Brewer, C., in Turner v. Fleming, 37 Okl. 75, 77, 78, 130 Pac. 551, 552 (45 L. R. A. [N. S.] 265, Ann. Cas. 1915B, 831 [1913]). The court in that case set aside an order of dismissal of a cause entered upon the suggestion of attorneys as a result of an unauthorized compromise and reinstated the cause.

But some courts will not set aside a compromise actually entered into by the unauthorized attorney unless it is unreasonable. Holker v. Parker, 7 Cranch, 436, 3 L. Ed. 396 (1810); Williams v. Nolan, 58 Tex. 708 (1883); Whipple v. Whitman, 13 R. I. 512, 43 Am. Rep. 42 (1882). Moreover, "while an attorney by virtue of his employment has not authority to make a compromise of an action he is employed to prosecute or defend, it is not to be presumed, when one so situated assumes the right to exercise such a power and does exercise it, that this was done without lawful authority, and but slight evidence in

SECTION 2.-CONFLICTING INTERESTS

B. B. A. CANON.

VI. ADVERSE INFLUENCES AND CONFLICTING INTERESTS. It is the duty of a lawyer to disclose to the client all his relations to the parties, and any interest in or connection with the controversy, which might influence the client in choosing or continuing to employ him as counsel. 10

It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests whenever his duty to one client may require or lead him to do anything that may injure the cause of his other client or to leave undone anything that might advance it.11

such a case may be sufficient to authorize the belief that he was clothed with all the power he assumed to exercise."-Stayton, C. J., in East Line & Red River R. Co. v. Scott, 72 Tex. 70, 73, 10 S. W. 99, 101, 13 Am. St. Rep. 758 (1888).

That a lawyer who compromises his client's case against the client's express directions is not entitled to any compensation is held in Rogers v. Pettigrew, 138 Ga. 528, 75 S. E. 631, 42 L. R. A. (N. S.) 852, Ann. Cas. 1913D, 409 (1912). See 42 L. R. A. (N. S.) 852, note; Ann. Cas. 1913D, 410, note.

A reversion of A. B. A. Canon 6.

10 "An attorney is bound to disclose to his client every adverse retainer, and even every prior retainer, which may affect the discretion of the latter. When a client employs an attorney, he has a right to presume, if the latter be silent on the point, that he has no engagements which interfere, in any degree, with his exclusive devotion to the cause confided to him; that he has no interest which may betray his judgment or endanger his fidelity."Story, J., in Williams v. Reed, 3 Mason, 405, 418, Fed. Cas. No. 17,733 (1824). 11 "It is fundamental, in respect to the duty of an attorney towards his client, that he should not use any information, which he has derived from his client, to the prejudice or injury of his client, and especially that he shall not act in opposition to his client's interests; and the rule is, as laid down in Ferg. J. Prac. 27, that lest any temptation should exist to violate professional confidence, or to make any improper use of information which an attorney has acquired confidentially, as well as upon principles of public policy, 'he will not be permitted to be concerned on one side of proceedings in which he was originally in a different interest.'"-Monell, J., in Hatch v. Fogerty, 40 How. Prac. (N. Y.) 492, 503 (1871).

"The test of inconsistency is not whether the attorney has ever appeared for the party against whom he now proposes to appear, but it is whether his accepting the new retainer will require him, in forwarding the interests of his new client, to do anything which will injuriously affect his former client in any matter in which he formerly represented him, and also whether he will be called upon in his new relation to use against his former client any knowledge or information acquired through their former connection."-Morrow, J., in In re Boone (C. C.) 83 Fed. 944, 952, 953 (1897).

See Messenger v. Murphy, 33 Wash. 353, 74 Pac. 480 (1903). Hoffman's Resolution VIII: "If I have ever had any connection with a cause, I will never permit myself (when that connection is from any reason severed) to be engaged on the side of my former antagonist. Nor shall any

The obligation to represent the client with undivided fidelity does not end with the matter in which the lawyer may have been employed. Thenceforth the lawyer must refrain not only from divulging the client's secrets or confidences, but also from acting for others in any matters where such secrets or confidences or knowledge of the client's affairs acquired in the course of the earlier employment can be used to the former client's disadvantage.

A. B. A. CANON.

10. ACQUIRING INTEREST IN LITIGATION. The lawyer should not purchase any interest in the subject matter of the litigation which he is conducting.12

SIMON MASON'S CASE.

(Common Bench, 1672. Freem. 74.)

A petition was exhibited against S. Mason, and articles alleged and proved, inter alia, that he had been an Ambidexter, viz., after he was retained by one side he was retained on the other side, and for this was committed to the Fleet and turned out of the roll. He was prosecuted by Sir John Huit and others.1

'ANONYMOUS.

(Court of King's Bench, 1702. 7 Modern, 47.)

BY THE COURT. No man, though by consent of parties, can be attorney on both sides.1

14

change in the formal aspect of the cause induce me to regard it as a ground of exception. It is a poor apology for being found on the opposite side, that the present is but the ghost of the former cause."-David Hoffman, A Course of Legal Study (2d Ed.) Vol. II, p. 753.

On the propriety and effect of a lawyer acting for a party adverse to the former client in the same general matter, see Ann. Cas. 1912B, 212, note.

12 See post, Chapter IX, note 46. On the right of a lawyer to purchase from the adverse party the subject-matter of the employment, see Ann. Cas. 1915C, 953, note.

18 "These slanderous words spoken of an attorney, "Thou dealest on both sides, thou deceivest many,' an action lies for them."-Byrchley's Case (1585) Jenkins' Rep. (4th Ed.) 284.

14 In Strong v. International B., L. & I. Union, 82 Ill. App. 426 (1898), affirmed on the Appellate Court's opinion in 183 Ill. 97, 55 N. E. 675, 47 L. R. A. 792 (1899), an attorney who represented adverse litigants was denied a recovery of fees from one client even though that client had waived any objection at the time of the inconsistent employment. Sears, J., who wrote the Appellate Court opinion said: "Some decisions may be found which hold that when an attorney at law acts with the consent of both adverse litigants, in

RETAINERS. Statement of the General Council of the Bar, The Annual Practice (1917) p. 2426: A general retainer 15 applies only to proceedings to which the person giving the retainer is a party. Accordingly where a mutual insurance club, which insured its members' steam trawlers, gave a general retainer to X., whom they furnished with a list of the vessels covered by the insurance, this general retainer

the character of an umpire, for the determination of their differences, there is then no inconsistency in such employment. But where the employment for each is to protect the respective and conflicting interests as they may arise in the litigation, it is generally held to be against public policy to allow a recovery of compensation." 82 Ill. App. at page 431.

In Lalance & Grosjean Mfg. Co. v. Haberman Mfg. Co. (C. C.) 93 Fed. 197 (1899), counsel for a litigant, supposing the litigation ended, accepted a retainer of a kind not disclosed from an adverse party to the litigation. The litigation turning out not to be at an end, the former client sought an order requiring the counsel to give up the retainer of the adverse party and enjoining them from accepting any other, and from revealing to the new client any confidential matter or thing acquired from the old one. The court pointed out that the new client might have business which the counsel could with perfect propriety transact, and, while it admitted that there was danger that the counsel might "unintentionally and perhaps unconsciously" put at the service of the new client "confidential information obtained from the old client by reason of the professional relationship," it refused to make the order. The court (Lacombe, Circuit Judge) said: "It is thought that the honorable obligation of a reputable member of the bar is a better assurance that professional secrets will be respected than would be an order of the court." 93 Fed. at page 200. In Peirce v. Palmer, 31 R. I. 432, 77 Atl. 201, Ann. Cas. 1912B, 181 (1910), however, the court enjoined a lawyer from acting for legatees under a will, who were cousins of his, against an ex-executor for whom he had formerly been attorney, even though the majority opinion stated that he had actually gained no confidential information which would assist him in representing his cousins and so "was no better prepared to prosecute” their claims "than was any other attorney at the bar."

It was held in Spinks v. Davis, 32 Miss. 152 (1856), that a contract by which an attorney took a claim against an intestate's estate for collection and at the same time agreed to take out letters of administration of the estate was void as against public policy because of the inconsistent obligations under which the attorney would be placed thereby.

15 The distinction in England between general retainers and special retainers is as follows: "General retainers are either ordinary or limited. An ordinary general retainer applies to the Supreme Court and House of Lords. A limited general retainer applies to the Tribunal or Tribunals or Court or Courts to which it is expressed to be limited. A separate general retainer must be given for the Privy Council. A separate general retainer must be given for Parliamentary Committees. If the counsel who has accepted a general retainer from one party should be offered a special retainer or brief by another party, the general retainer entitles the party who has given it to reasonable notice before the offered special retainer or brief is accepted. Subject to these rules a general retainer lasts for the joint lives of the client and counsel, unless the same be forfeited. In case a special retainer or brief is offered to counsel by a party other than the party from whom he has accepted a general retainer, the counsel, after giving notice to the party from whom he has accepted the general retainer of the offer of the special retainer or brief, is at liberty to accept the special retainer or brief of the other party, unless a special retainer or brief be given within a reasonable time by the party from whom he has accepted the general retainer. When a general retainer has been given, and a brief is not delivered to the retained counsel in any action, or other proceeding in which the party giving the general retainer is concerned, and to which it applies, or a special retainer or

did not operate as a general retainer covering proceedings in which the members of the club individually, or their trawlers, were parties; and where a plaintiff in an action against one of such steam trawlers instructed X. to settle statement of claim, X. was not entitled to set up such general retainer as a reason for declining such instructions. The principle of this is not confined to mutual insurance clubs; it applies to any case in which the services of a barrister are sought against an individual who is insured in a company for which the barrister holds a general retainer. An. St. 1913, p. 14.

RETAINER RULES PREPARED BY THE BAR COMMITTEE AND APPROVED BY THE ATTORNEY GENERAL AND BY THE COUNCIL OF THE LAW SOCIETY, 1892. The Annual Practice (1917) pp. 2429, 2431.

Retainer Rule XX. Counsel who has drawn pleadings or advised, or accepted a brief, during the progress of an action on behalf of any party shall not accept a retainer or brief from any other party without giving the party for whom he has drawn pleadings or advised, or on whose behalf he has accepted a brief, the opportunity of retaining or delivering a brief to him, but such Counsel is entitled to a brief at the trial, and on any interlocutory application where Counsel is engaged, unless express notice to the contrary shall have been given to him with the instructions to draw such pleadings or advise, or at the time of the delivery of such brief. Provided always, such Counsel shall not be entitled to a brief in any case where he is unable or unwilling to accept the same without receiving a special fee.

orief is not given within a reasonable time after a notice has been given by the counsel holding a general retainer, that a special retainer or brief has been offered to him by another party, the general retainer is forfeited; provided that the holding of a general retainer does not entitle a Queen's Counsel to the delivery of a brief on occasions when it is usual to instruct a junior counsel only. Where a general retainer has been given for one person, and he is party to a proceeding with others, and appears separately, the retainer applies to that proceeding; but if he appears jointly with others, the retainer does not apply and remains unaffected. A special retainer cannot be given until after the commencement of an action, appeal or other proceeding. A special retainer in an action or proceeding in the Supreme Court gives the client a right to the services of the counsel while the action or proceeding remains in or under the control of that Court. A special retainer in an action or proceeding other than an action or proceeding in the Supreme Court gives the client a right to the services of the counsel during the whole progress of such action or proceeding. A counsel who has been specially retained is entitled to the delivery of a brief on every occasion to which the special retainer applies; provided always: A special retainer does not entitle a Queen's Counsel to the delivery of a brief on occasions when it is usual to instruct junior counsel only. When more than one junior counsel has been retained, only one of such junior counsel is entitled to the delivery of a brief on occasions when it is usual to instruct one junior counsel alone."-Law, Practice and Usage in the Solicitor's Profession (1909) p. 294.