Gooch v. Peebles

Davis, J. after stating the facts: Several questions are presented in the record, but we think it only necessary to consider that presented by the refusal of his Honor to give the first prayer for instruction asked by the plaintiffs, and the exception to the charge as given in relation thereto, as these will be decisive of the case upon its merits. Were the plaintiffs entitled to the first prayer for instruction, which was denied, and if so, was it sufficiently included in the charge as given? An attorney is licensed by the State to practice law, and is thereby invested with certain rights and privileges, which impose upon him correlative duties and obligations. ■ He is an officer of courts in which he may practice, and occupies a quasi official relation to the public, and when he assumes the duties of attorney to client, one of these, undoubtedly, is to communicate to his client any fact within his knowledge relative to the business about which he is employed, that it may be important for the client to know; and having once — 427 — assumed the relation of attorney to client, he cannot terminate it at his pleasure, and without notice to his client, so long as anything remains to be done about the matter in which he is so employed. Weeks on Attorneys at Law, § 249; Walton v. Sugg, Phil. Law, 98. It is admitted that Mr. W. W. Peebles was attorney for the plaintiff C. T. Johnson, but he insists that he was only her counsel as executrix “for the administration of the estate as long as she remained executrix, up to the time of her removal,” and that he ceased to be such when she was removed. ¡She was not only executrix of the will of Y. A. Johnson, about which it was his duty to advise her, but she was also trustee under the will, with important duties to discharge as such — a trust that involved rights of her own as well as duties to others. It appears from the record that she was a non-resident, and, in any event, it was the duty of her attorney to inform her of the fact that she had been removed as executrix, and that she had rights as a devisee, and duties to discharge as trustee under the will which remained, notwithstanding her removal as executrix. These wrere matters of great importance to her, about which it is manifest she would need counsel, and if he intended no longer to act as such, it was his duty to so inform her, and he could not terminate his relation to her as attorney without so informing her. Needing counsel and having employed counsel, she could not be thus left ignorant of the fact that she had none. The duty of counsel did not begin with the proceedings instituted for her removal as executrix. He had been employed long before, and was, what has been usually termed, general counsel and adviser as to her duties under the will, and her duties as executrix and her rights and duties as trustee w’ere so intimately blended that duties of counsel would have been only half discharged if he failed to advise her as to both, and, in the absence of any — 428 — notice or information to the contrary, she had a right to regard the relation of attorney and client as .continuing, and the attorney could not terminate it without such notice. Scrupulous good faith is required of an attorney towards his client, and even after the relation ceases, the attorney can acquire no rights and assume no obligations in regard-to the subject-matter of his advice and counsel antagonistic to the rights and interests of the client, unless the most ample information has been afforded to place the client on her guard. Weeks on Attorney, §271, et seq.; Ziegler v. Hughes, 55 Ill., 288. But it is said that no fees were paid. This cannot alter the case. It does not appear that they were demanded or required to be paid in advance, and she was not notified that payment of fees was necessary as a requisite to the continuance of counsel. Besides, it was not unnatural that she should have supposed that they would be paid in the settlement of the estate, when funds might be in hand to enable her to do so. However this may be, the attorney is not justified in terminating his relation to his client for this reason without notice. Weeks on Attorney, § 316. Mr. Peebles says: “ I suppose she (C. T. Johnson) is a trustee under the will; I did not consider that I had any other employment from her but' the probate of the will and the settlement of the administration of the estate; she had no other attorney but me,” &c. And again, in regard to the proceeding for the sale of land, &e., he says: “I saw Mr. Long; a day was appointed for him to come; he came and made the affidavit to the petition. It was agreed that I should act for him, do the work and take the commissions. He turned the whole matter over to me, and I really acted as administrator. I was his attorney, and I was also defendant.” These were relations that placed his duty and his interest in conflict, and the law will not permit it. — 429 — It was not necessary that there should have been any actual fraud in the transaction, but the rule which forbids it, rests upon the broad principle of public policy which precludes persons occupying these fiduciary relations, from representing conflicting interests that may tempt them to disregard duty and lead to injury on one side or the other. The law will not permit an attorney to represent conflicting interests at the same time, nor will it, after he has represented one side, ■permit him to become the attorney of the adverse side in regard to the matter in controversy to the detriment of his original client. Molyneux v. Huey, 81 N. C., 113. “ The relation of attorney and client is usually terminated by the termination of the particular proceeding or business for which he was employed. * * * His authority to act cannot be ended by his own voluntary act to his client’s detriment.” Weeks on Attorneys at Law, §249. Again, it is said by the same author, §258: “An attorney employed, or consulted as such, to draw a deed, or an application for an original title to land, is precluded from buying for his own use any outstanding title. In such case the relation is confidential, and whether he acts upon information derived from his client, or from any other source, he is affected with a trust. The rule is on the ground of public policy, not of fraud, and prevails, although the attorney be innocent of any intention to deceive and acts in good faith.” Mr. Peebles says: “I bought the interest of Dr. Johnson in the land before she was removed. I did not advise her that I had bought his interest. * * * I did not conceive it was my duty t® advise her that I had purchased and claimed the land ” He afterwards says: “ I don’t remember (when the purchase under the execution was made) whether she had been removed or not.” — 430 — It appears from the order of removal, dated March 23d, 1876, and the date of sale, April 6th, 1876, as a matter of fact, that she was removed before the purchase; but it is distinctly stated that she was not informed of it, either before or after, and having acted as her attorney, he could acquire no interest in the matter antagonistic to hers, without notice to her, and the fullest and fairest explanation. Henry v. Raiman, 25 Penn., 359. There is another view of the case which we think adverse to the defendants. Even if it were conceded (and we do not think it can be) that the attorney could put an end to his relation, as such, to his client without notice, it was his duty, whether as attorney of J. J. Long, administrator d. b. n. e. t.a., or whether he “really acted as administrator” to protect, as far as he could, the rights and interests of C. T. Johnson, and the others for whom she was trustee, against unjust or improper claims against the estate, it was his interest, as one of the defendants in the special proceeding (in which he acted as counsel for the plaintiff administrator d. b. n. c. t. a. and drew all the papers), to assert a claim which it was the duty of the administrator*, in behalf of'his co-defendants, the devisees under the will, to resist. This conflicting duty cannot be permitted in courts of justice. If it be said that the law allows a creditor to administer on the estate of the debtor, and his interest is antagonistic to that of the estate and of the next of kin, the answer is that this is by statute, and proceeds from necessity, to enable the creditor to collect his debt, because no one primarily interested in protecting the estate will, administer.. In this case, he does not stand in the relation of a creditor administrator, who, being known as such, is known to be acting in his own interest, as well as for others, and the next of kin, but as counsel for the plaintiff in the special proceeding. In -this capacity, it was his duty, primarily, to protect the interests of the estate, and — 431 — especially the rights and interests of the devisees. In his capacity as a claimant of the interest of James Johnson, he causes himself to be made a party defendant in the special proceeding with the devisees of Y. A. Johnson, and this for the purpose of enabling him to assert a claim, not as a creditor of Y. A. Johnson, for whose debts the land was sought to be sold, but adverse to his co-defendants, whose interest it was the duty of the plaintiff administrator to protect and defend, and this without any notice of such a claim, by publication or otherwise, to the plaintiffs in this action (defendants in that), of the existence of such a claim, for, while there is a question as to the sufficiency of the notice by pub-' lication, which, in the view taken by the Court, is not necessary to consider, the petition was to sell land to pay the debts of V. A. Johnson, deceased, and the notice stated only this to be the object of the petition, and that there was no personal claim against defendants, and while there was notice that the sale would be confirmed, service was accepted bjr the defendant only, and there was no service in any way upon the other defendants, the present plaintiffs, and the sale was confirmed and the order for payment and distribution made without notice to any one of record, except the present defendants, who accepted service, and whose interest was adverse to their co-defendants. It will be seen from the will of V. A. Johnson that the-whole of her estate was devised to C. T. Johnson as trustee, for the purposes named. It was so stated in the petition for sale drawn by the defendant W. W. Peebles, and it is not pretended that she had any notice, by publication or otherwise, of this claim by the defendants to the surplus. It has been held in Mississippi that an attorney, employed to collect a claim against the estate of a deceased man, could not assume the administration of the estate, because, as attorney, he was bound to protect the interest of his client, — 432 — and, as administrator, he was bound to protect the interest of the estate. “ Under such circumstances,” says the Court, “ the attorney could not have performed his duty to prosecute the claim, if its validity had been doubtful, consistently with his duty to defend the estate against its collection. Hence a strong temptation would necessarily arise to violate his duty in the latter capacity, and to pay the claim,” &c. Sprink v. Davis, 32 Miss., 152. The law will not permit its licensed, attorneys to assume relations that will subject them to this temptation upon grounds of public policy, and it is for this reason that an attorney will not be permitted to represent both' sides in any litigated matter. This is too well settled' to need citation or authority. The plaintiffs were entitled to the first instruction asked by them, and it was not covered by the charge as given. There-was error in refusing the first prayer for instruction, and also in the second paragraph of the charge as given. The jurjr should have been told that, if they believed the evidence, Mr. Peebles could not terminate his relation as attorney for O. T. Johnson without notifying her of what had been done. Error.