Gosnell Ex Rel. Gosnell v. Hilliard

Adams, J. An attorney who is retained generally to conduct a legal proceeding enters into an entire contract to follow the proceeding to its termination, and hence cannot abandon the service of his client without sufficient cause and without giving proper notice of his purpose. Branch v. Walker, 92 N. C., 87; Ladd v. Teague, 126 N. C., 544; Newkirk v. Stevens, 152 N. C., 498; United States v. Curry, 6 How., 106, 12 L. Ed., 363; Tenny v. Berger, 93 N. Y., 524, 45 A. L. R., 263. Weeks states the rule as follows: “An attorney who undertakes the conduct of an action impliedly stipulates to carry it to its termination and is not at liberty to abandon it without reasonable cause and reasonable notice.” Weeks on Attorneys at Law, sec. 255. The dual relation sustained by an attorney imposes upon him a dual obligation — the one to his client, the other to the court. He is an officer of the court, Waddell v. Ay cock, 195 N. C., 263, and can withdraw from a pending action in which he is retained only by leave of the court, Branch v. Walker, supra, Ladd v. Teague, supra, and only after having *301 given reasonable notice to Ms client. This Court bas held tbat if an attorney wishes to withdraw from a case in which he has been employed he must inform his client of his intention, and that he cannot terminate the contractual relation between them without imparting such information. In an analogous case Da-vis, J., remarked: “Needing counsel and having employed counsel she would not be thus left ignorant of the fact that she had none.” Gooch v. Peebles, 105 N. C., 411. No rule of universal application has been formulated with respect to facts or conditions which would justify an attorney in withdrawing from pending litigation; but it is generally held that the client’s failure to pay or to secure the payment of proper fees upon reasonable demand will justify the attorney in refusing to proceed with the case. Ternvg v. Berger, supra; Bliot v. Lawton, 7 Allen, 274, 83 A. D., 683; Thomas v. Morrison, 46 S. W., 46; Bissell v. Zorn, 99 S. W., 458; Young v. Lanznar, 112 S. W., 17; Silver Peak Gold Min. Co. v. Harris, 116 Fed., 439. In Spector v. Greenstein, 85 Pa. Sup. R., 177, it was held that while an attorney may sever his relation with a client who refuses to pay a fee, his withdrawal should not be allowed in the absence of the client, without notice to him, and without his having an opportunity to be heard. The attorney who had previously represented the defendant is a reputable attorney and a member of a reputable firm. This finding is set out in the judgment. His fee was not paid and for this reason he withdrew from the case by leave of the court. The decisive question is whether the defendant was'entitled to specific notice that her attorney would not represent her at the trial. It is held generally that she was entitled to such notice. In their last conference the attorney told the defendant that she must “pay his firm some fees for their services performed and to be performed,” that “he must have some money” — a remark of frequent repetition in these latter days; but this is all that was said in regard to the payment of fees. There is no finding of fact, indeed no pretense, that the defendant had definite notice of the attorney’s intention to withdraw. She was informed that the case would probably be called for trial at the ensuing term of the court, but she did not know when the term would be held or when the case would be tried. It is found as a fact that she had no knowledge that the case had been listed on the calendar or that her attorney intended to retire as counsel. She was entitled either to specific notice in advance that her counsel would retire from the case or, after his withdrawal, that he had retired, and to a reasonable opportunity to obtain other professional assistance. According to the judgment of the trial court, the defendant has a good and meritorious defense to the plaintiff’s action; she acted promptly *302 upon discovery of the judgment against her; and without remissness or laches on her part she is entitled to the relief demanded. We concur in the judgment. The appellant makes the point that the Superior Court merely declared the judgment void and left the verdict undisturbed. Formerly a judgment based on a verdict could not be set aside for excusable neglect, Morrison v. McDonald, 113 N. C., 327; but in 1893 the General Assembly amended the statute by inserting the word “verdict.” P. L., 1893, chap. 81. Both the judgment and the verdict may now be vacated for excusable neglect. Accordingly, it was ordered that the judgment entered at April Term, 1932,, be declared void and set aside and .that the cause be retained “to the end that the same may be heard upon its merits.” The latter clause vacates the verdict. Judgment Affirmed.