Gentry v. Richardson

George Rose Smith, J. This dispute centers upon the question of whether the appellant attorneys, Tom Gentry and Thorp Thomas, are entitled to act as counsel for tiie appellee administrator in an action for the wrongful death of Billy Warren Brod. The probate court, by the order now under review, approved the administrator’s employment of three other attorneys, Kenneth Coffelt, Ben McCray, and Fred Briner, and enjoined the appellants from acting further in the suit for wrongful death. Billy Warren Brod, aged nineteen, was killed in a traffic collision on October 8, 1956. On October 15 the probate court appointed the decedent’s father, M. L. Brod, as administrator of the estate and approved a contract by which Brod employed G-entry and Thomas to bring the action for wrongful death. Three days later the decedent’s nineteen-year-old widow, Linda Brod, filed a petition protesting the earlier appointment, which had been made without notice to her, and asserting her preferred right to nominate the personal representative. After a hearing on October 29 the court set aside its original order and appointed the widow’s nominee, Gordon Richardson, as administrator of the estate. On appeal we sustained the widow’s position in the matter and affirmed the order naming Richardson as personal representative. Brod v. Brod, 227 Ark. 723, 301 S. W. 2d 448. A week after our decision on the first appeal Richardson, without notice to these appellants, presented to the probate court a motion asserting that two actions for wrongful death were pending in the circuit court — one brought by Gentry and Thomas and the other brought by the three attorneys whom Richardson had employed on the day of his appointment. In his motion Richardson asked that his contract with Coffelt, McCray, and Briner be approved, that he be authorized to dismiss the suit filed by Gentry and Thomas, and that the latter attorneys be prohibited from taking any further action for the administrator or for the estate. On the presentation of this motion the probate court entered an order granting the relief asked. The appellants, in insisting upon the continuing validity of their contract with the original administrator, rely upon that section of the Probate Code which provides that the removal of a personal representative does not invalidate his prior official acts. Ark. Stats. 1947, § 62-2203. The appellee contends in tnrn that the appointment of M. L. Brod was void and conld not be the basis for a contract binding the estate. We need not explore the merits of these contentions, for we are met at the ontset by the fact that an administrator in succession undoubtedly has the power to substitute attorneys of his own choice for those already engaged. It is a fundamental characteristic of the attorney-client relation that the client always has the right to control the litigation and the consequent power to discharge the attorney, with or without cause. Johnson v. Mo. Pac. R. Co., 149 Ark. 418, 233 S. W. 699. This principle should apply, and has in fact been applied, when the client happens to be the personal representative of an estate. In re Montgomery’s Estate, 272 N. Y. 323, 6 N. E. 2d 40; In re Dix’ Estate, 144 Misc. 494, 259 N. Y. S. 449. Hence it is clear enough that the contract between Brod and the appellants did hot confer upon these attorneys a vested right to carry the proposed litigation to its conclusion. It is also asserted that the appellants were deprived of a property right without due process of law, in that their contract of employment was terminated without notice to them or an opportunity for them to be heard. This contention raises what is really a twofold issue, which must be considered in its separate aspects. By its language the court’s order is purely prospective in operation, restraining the appellants from taking further action as counsel for the estate. In this aspect the order, although entered without notice, does not involve a denial of due process. The administrator, as we have seen, had the power to discharge these lawyers, despite their protest. It may be doubted whether the probate court’s approval was essential to the exercise of that power. See In re Dix’ Estate, supra, and Ark. Stats., § 62-2208, with the appended Committee Comment. But in any event the appellants are not in a position to complain without first showing that the want of notice prevented them from asserting a defense to the court’s action. That showing has not been made. On the other hand the court’s order, although it does not purport to touch this subject, might be relied upon as a bar to the appellants’ right to contend that a valid contract of employment had been wrongfully breached by the appellee. Upon this aspect of the case we agree that the appellants would be denied due process if the order were construed to deprive them of their rights without notice and without an opportunity for the assertion of their claim. We therefore affirm the court’s order, in its prospective aspect, without prejudice to any claim for compensation or for damages that the appellants may think it proper to assert. Such a claim has not yet been presented, nor could it be decided on the record before us. The contract by which Brod employed the appellants is not in evidence; we know nothing of its terms. If that agreement should be found to be valid and to have been wrongfully breached, a question might arise whether the appellants’ damages should be measured by the value of their past services or by the net loss resulting from the breach. See Berry v. Nichols, 227 Ark. 297, 298 S. W. 2d 40. In this record there is no proof touching even remotely upon these issues, which are accordingly left open for future decision. Affirmed. Harris, C. J., and Ward and Robihson, JJ., dissent.