witness was dismissed. This being done, the case went to the jury upon the evidence and inferences as they previously stood, and the trial eventuated in a verdict for the defendant for the entire tract. The counsel for defendant, however, were compelled, upon the argumnt, to urge presumptions upon the jury; which, though consistent with the evidence submitted, were, of course, inconsistent with the actual state of the case, as it would have been exhibited by the axe-bearer. This verdict, though gratifying to professional pride, was not very satisfactory to the conscience of the counsel; and having met the plaintiff, who was a man of wealth and liberality, they suggested to him, that as their clients were poor men, and as the case had been tried, they thought some terms might be agreed upon to settle the question forever, and to give the defendants a marketable title. "Very well," said the plaintiff, "the property is worth ten dollars an acre, but as you have got a verdict, and as you say the occupants are poor, let them pay me a dollar an acre for the land, and I will execute a deed to them." The money was paid-the conveyance executed, and the controversy ended.

Upon this case being mentioned to some members of the bar, different opinions were expressed in relation to it. A gentleman of a high moral standard, and an eminent lawyer, expressed the opinion, that the course pursued was entirely justifiable. First, because the counsel were not bound to call the witness, who would destroy their client. Secondly, that they were permitted to maintain that, upon the evidence the plaintiff was not entitled to recover. Another gentleman admitted the first proposition, but observed, in relation to the second, "that the defence did not rest upon any alleged insufficiency of the plaintiff's title, but upon maintaining affirmatively the possession of the defendant for twenty-one years, and endeavoring to induce the jury to believe what his counsel knew was not the fact," which was utterly inconsistent with every principle of moral philosophy. Even in a criminal case, which is the severest test to which counsel can be subjected-though counsel may contend that the case for the prosecution is not made out by the evidence-they have no right to contend that presumptions may be built upon the evidence, which, although the evidence may possibly warrant them, the counsel know to be contrary to fact and truth.

SECTION 4.-DISCHARGE AND WITHDRAWAL OF
COUNSEL

TENNEY v. BERGER.

(Court of Appeals of New York, 1883. 93 N. Y. 524, 45 Am. Rep. 263.)

EARL, J. This action was commenced to recover for legal services rendered by the plaintiff to the defendant, as attorney in the proceedings in the Surrogate Court of the city of New York, in reference to the probate of the will of the late Cornelius Vanderbilt, who was the father of the defendant. In her answer she alleged that the plaintiff was retained under a special agreement, by which he was to receive for his services whatever sum she saw fit to give him; that he was to act as her attorney until the termination of the proceedings; that he violated his agreement by abandoning the proceedings and refusing to act as her attorney therein long before the same were terminated, without any lawful or sufficient reason therefor and against her wishes and remonstrances, and that he thus violated his agreement.

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Under the last retainer the plaintiff went on and rendered services, from time to time, until on or about September 28, 1878, when one S. was employed by the defendant as additional counsel, without the knowledge of the plaintiff or any consultation with him, and the first the plaintiff knew of the employment was when he saw him in court sitting beside the other counsel in the case. The next day he wrote a letter to the defendant in which he complained of the introduction of S. into the case as counsel without consulting him, and expressing his determination, on that account, to withdraw from the case. That letter led to interviews between the plaintiff and the defendant and one of her counsel, in which she attempted to dissuade him from his determination. But he persisted, informing her that he had personal and professional objections to being associated with Mr. S. in the case and withdrew from the case.

The rule of law undoubtedly is, as claimed by the defendant, that an attorney who is retained generally to conduct a legal proceeding enters into an entire contract to conduct the proceeding to its termination, and that he cannot abandon the service of his client without justifiable cause and reasonable notice. This rule has been laid down in many authorities. Menzies v. Rodrigues, 1 Price, 92; Stokes v. Trumper,

2 K. & J. 232; Creswell v. Byron, 14 Vesey, 272; Nicholls v. Wilson, 2 Dowl. (N. S.) 1032; Harris v. Osbourn, 2 C. & M. 629; Whitehead v. Lord, 11 E. L. & Eq. 589; Wadsworth v. Marshall, 2 C. & J. 665; Davis v. Smith, 48 Vt. 54; Bathgate v. Haskin, 59 N. Y. 535; 2

Greenl. Ev. § 142; Weeks Attorneys, §§ 255, 316; Cordery Solicitors, 62. If an attorney, without just cause, abandons his client before the proceeding for which he was retained has been conducted to its termination, he forfeits all right to payment for any services which he has rendered. The contract being entire he must perform it entirely in order to earn his compensation, and he is in the same position as any person who is engaged in rendering an entire service, who must show full performance before he can recover the stipulated compensation. While the attorney is thus bound to entire performance, and the contract as to him is treated as an entire contract, it is a singular feature of the law that it should not be treated as an entire contract upon the other side; for it is held that a client may discharge his attorney arbitrarily without any cause at any time, and be liable to pay him only for the services which he has rendered up to the time of his discharge. Ogden v. Devlin, 45 N. Y. Super. Ct. 631; Trust v. Repoor, 15 How. Prac. 570; Gustine v. Stoddard, 23 Hun, 99.87

What shall be a sufficient cause to justify an attorney in abandoning a case in which he has been retained has not been laid down in any general rule, and cannot be. If the client refuses to advance money to pay the expenses of the litigation, or if he unreasonably refuses to advance money during the progress of a long litigation to his attorney to apply upon his compensation, sufficient cause may thus be furnished to justify the attorney in withdrawing from the service of his client. So any conduct on the part of the client, during the progress of the litigation, which would tend to degrade or humiliate the attorney, such as attempting to sustain his case by the subornation of witnesses or any other unjustifiable means, would furnish sufficient cause.88 The attorney is always interested to know with whom he is to be associated in the trial of a cause. The counsel is supposed to be his superior, and is usually employed on account of his superior ability, experience, reputation or professional standing, and after an attorney has engaged in a cause, it would seem to be quite proper that he should be consulted as to the person who is to bear the important relation to him of counsel. The client would certainly have no right, against the protest of the attorney, to introduce as counsel in the case a person of bad character, or of much inferior standing and learning-one not capable of giving discreet or able advice. It would humiliate an attorney to sit down to the trial of a cause and see his case ruined by the mismanagement of counsel.

The relations between attorney and counsel, too, are of a delicate and confidential nature. They should have faith in each other, and their relations should be such that they can cordially co-operate. While

87 On the right of a client to discharge a lawyer at will, see 19 Ann. Cas. 592, note. On the right to discharge where the lawyer is employed for a contingent fee, see 14 L. R. A. (N. S.) 1095, note; 38 L. R. A. (N. S.) 389, note.

88 On the right of counsel to withdraw from litigation because of the client's misconduct, see 35 L. R. A. (N. S.) 960, note; Ann. Cas. 1912D, 640, note.

a client has the undoubted right to employ any counsel he chooses, yet it is fair and proper, and professional etiquette requires, that he should consult the attorney and other counsel in the case so that they can withdraw, if for any reason they do not desire to be associated with him. Here the plaintiff was assured when he was retained, that Mr. Lord and Mr. Black had been employed as counsel in the proceedings, and that he was to act under their advice and direction, and when she employed Mr. S. without the knowledge or consent of the plaintiff, thus placing him in a subordinate position to S. also, she furnished him with a reasonable cause for withdrawing from the

case.

We do not think that the rule that an attorney is bound to an entire contract should be very rigidly enforced, while the client is left with the right arbitrarily to discharge him at any time.

We do not think the plaintiff waived his objection to be associated with Mr. S. by remaining in the case, without objection, one day after he knew of S.'s retainer. He certainly was not required to rush out of the courtroom the moment he observed his presence, and thus abandon the case. He was bound to give his client reasonable notice, and that he did, on the very next day after he had learned that S. had been introduced into the case.

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The judgment should be affirmed."

WITHDRAWAL BY COUNSEL BECAUSE OF ABUSE BY CLIENT. N. Y. Committee. Question 55: A lawyer asks what course he ought to pursue in order to terminate his relations with a client who, it appears, finds fault with his advice, writes him a grossly abusive letter, and does not avail himself of counsel's offer to consent to a substitution.

It appears that the retainer was to collect a claim for services upon a contingent fee under a written contract which provides that the client, who, it appears, is also a member of the bar, "shall be free to decide policy, amount of settlement, acceptance of verdict, appeals, etc." An action in the Supreme Court under the retainer was commenced. In the complaint the defendant was named with the addition of an alias, which the court on his motion struck off. Plaintiff insisted upon an appeal being taken from the order made on that motion, although his counsel advised him that the order was not appeal

89 On the right of counsel to withdraw from a suit, see Whitehead v. Lord, 7 Ex. 691 (1852). Lord Abinger remarked in Nicholls v. Wilson, 11 M. & W. 106, 107 (1843), that: "It is possible to conceive of circumstances under which an attorney might be justified in abandoning proceedings without any notice." On the death of a lawyer employed for a contingent fee, or his withdrawal, without the client's fault, before final adjudication, as affecting his compensation, see 52 L. R. A. (N. S.) 380, note.

able. The appeal is pending and the time of plaintiff to reply to a counterclaim set up in defendant's answer is about to expire.

Counsel complains that from the beginning his client has pestered him with unnecessary and offensive epistles and has acted personally in an abusive manner.

Answer: As it appears that the client has made the continuance of the relations between him and his counsel intolerable and has thus precluded the performance of the contract by the counsel, the committee is of the opinion that counsel would be justified in applying to the court in which the action is pending, on notice to the client, to be allowed to withdraw from the case upon such terms as the court may deem proper; leaving the client to any remedy at law upon the contract to which he may think himself entitled by counsel's refusal to act longer under the retainer. Until relieved by the court, counsel should take the proper steps to protect the interests of his client in the litigation.90

90 "What is a sufficient cause to justify an attorney in abandoning a case in which he has been retained has not been laid down by any general rule, and in the nature of things cannot be; but where, as in this case, the plaintiff, even if he has any ground for communicating with his attorneys, instead of doing so by mail under the secrecy of the postal laws, seeks to degrade and humiliate them by sending a telegram, in which he states that they have been guilty of falsehood and gross fraud and neglect, and that he does not intend to stand their abuse any longer, it must be held that such conduct is equivalent to a discharge of his counsel, and a breaking off of the confidential and delicate relation theretofore existing between them. Such conduct must result in the destruction of all faith in each other and render it impossible for them to further co-operate."-Stone, J., in Genrow v. Flynn, 166 Mich. 564, 568, 131 N. W. 1115, 1116, 35 L. R. A. (N. S.) 960, Ann. Cas. 1912D, 638 (1911). "The court does not understand that when a headstrong and wayward client does not go to the office of her attorney for counsel, but separates herself from him at a distance in the country, without notifying him or inviting his counsel, that the ethics of the legal profession demand that he should go and hunt her up and thrust upon her, uninvited, his interference and counsel." -Philips, District Judge, in Bunel v. O'Day (C. Č.) 125 Fed. 303, 309 (1903).