Barker's Case

Bellows, C. J. The cost taxed in this case appears to be in accordance with the fee bill established by the Coos county bar, and the court cannot say that such charges against the plaintiff, the attorney’s client, was of a character to call for the summary interference of this court. It is clear, on the other hand, that the charges are much greater than the amount legally taxable to the defendant, had the case gone to judgment. The defendant, however, had (then) no right to tender the debt and cost to the plaintiff or his attorney; that he could do after the entry of the action. As the matter then stood, he had his election, to pay the amount of cost demanded, or become defaulted at the approaching term, in which case the cost legally taxable against him would have been something like eight dollars less than the amount he paid. If then, the defendant chose to pay the amount claimed by the attorney, rather than let the case go on to judgment, he would have no cause to complain, provided ho did it voluntarily, with a knowledge of the facts, and without any fraud or imposition practiced by the attorney. But, if the attorney deceived him and fraudulently and falsely led him to believe that the sum he claimed, was legally taxable against him, while he withheld from him a statement of the items, it would make a case of money paid by mistake of facts, and the defendant might recover back the excess beyond the legal cost. In such a case, where the fraud of the attorney is clearly established, the court has the power, and would be disposed to exercise it, to interfere in a summary way and compel the attorney to refund the excess. In re eyre 1 C. B. (N. S.) 151, there was a rule upon eyre, an attorney to answer to a charge for obtaining of a defendant an excessive amount of costs, by a false assertion, that judgment had been signed and execution issued. It appeared that the attorney was not personally cognizant of the matter; but, as it was done in his office, by persons for whose acts he was responsible, and, as he had received the money so obtained, he was adjudged to be so far implicated as to be responsible, and it was decided that the rule should be discharged, on his refunding the excess. A similar doctrine was held in Dunkley v. Farris, 11 C. B. 457. Where an attorney brought an action without being retained for that purpose, he was ordered to pay the costs in ten days, or be suspended from all practice as an attorney, till the costs were paid. Anon. 2 Cow. 589. So the court will grant an attachment against an attorney for foul practiccfin extorting money from a husband, by threatening to prosecute him for a trespass committed by his wdfe. Wright v. Mason, 8 Mod. 109-10. The court will award an attachment against an attorney for fraudulent practice, Com. Dig. Attorney, B. 15; Hawk. P. C., B. 2, ch. 22, sec. 6 & 10, where it is laid down that courts may award attachments against attorneys for injustice to said clients, for base and unfair dealing, for protracting suits by little shifts and devices, and putting the parties to unnecessary expenses in order to [198] raise their bills, or demanding fees for business which was never done. See also Floyd v. Wangle, 3 Atk. 568, where an attachment was awarded against an attorney for gross negligence in conducting his clients business. In ordinary cases, however, when the party has a remedy by action, the court will not interfere in a summary way, unless a case of fraud be shown. In re Thomas Lord, 2 Scott, 131, it was held that the court will not entertain a motion touching the conduct of an attorney, unless in a case of gross fraud. In re Jones, 1 Chitty 655, it was held that the. court would not interfere summarily for mere negligence without fraud, in cases in note. In Meix & al. v. Lloyd, 2 C. B., N. S., 409, it was held that excessive charges by an attorney against a client, not shown to be so outrageously and wilfully excessive as to amount to fraud, does not furnish ground for a summary application to the court, the client being sufficiently protected by the taxation of the attorney’s bill. In that case, Cockburn, C. J., says : It is important that officers of the court should be kept under wholesome control with reference to their conduct and dealings with their clients. But on the other hand it is equally important that they should not be unduly prejudiced in their professional character, by being brought before the court on slight grounds. If an attorney procures one to become bail for another, and verbally promises to save him harmless, the court will not interfere in a summary way, but leave the bail to bring his action. Com. Dig. Attorney, B. 15. Beal v. Langstaff, 2 Wills 371. The true doctrine is expressed in Bacon’s Abr. Attorney, H, thus ; attorneys are officers of court, and liable to be punished in a summary way, either by attachment, or by having their names stricken out of the roll of attorneys, for any ill practice attended with fraud and corruption, and committed against the obvious rule of justice and common honesty; but the court will not easily be prevailed on io proceed in this manner, if it appears that the matter complained of was rather owing to neglect or accident, than design, or if the party injured has other remedy provided by act of parliament, or action at law; and this doctrine is recognized in Bryant’s case, 34 N. H. 149. Tested by these rules, we think the court is not called upon to exercise its summary power in this case; for we think it is not clearly shown that fraud was practiced by the attorney to obtain payment of this bill. It is true, he declined to give the defendant a statement of the items, unless he was going to pay it, and some of the expressions used by him have some tendency to show that he may have intended to leave upon the debtor’s mind an impression that he might be bound to pay the same exacted; and yet, taking the whole together, we fail to find that evidence of fraud that would justify this summary interference. The court is fully impressed with the importance of its interposition to check any fraudulent or corrupt practice by an officer of the court, and a member of a profession so highly honored and trusted, and [199] which exercises such a vast influence in the affairs of men ; but, at the same time, we feel that, in view of the very grave effects of exerting this power upon the professional standing and character of the person who may be subject to it, it ought to be exercised with great caution, and only when the court is fully satisfied that the ■ fraudulent or corrupt conduct is proved. Such proof, we think, is ■ not furnished in this case, and, therefore, the complaint must be dismissed. We feel, however, constrained to say, that the conduct of Mr. Barker, in withholding from the defendant, Mr. Goodwin, the infor- . mation he ought, — to enable him to ascertain whether he was bound to pay the amount claimed or not, was inconsistent with that courtesy and frankness that ought always to distinguish the members of a high and honorable profession, — was well calculated to bring that profession into disrepute; and could not but lead to a suspicion that he intended to mislead the defendant, and obtain from him a larger sum than he was bound by law to pay. If the charges in the bill given to the defendant were reasonable, and in determining whether they were so or not, the usual and ordinary charges by members of the profession might be considered, the plaintiff might properly have been charged with them. Fox v. Whitney, 33 N. H. 516; Wilcox v. Bowers, 36 N. H. 372. But the objection here is, that Mr. Barker ■ does not appear to have explained the matter to the debtor, but left ■ him to infer that the attorney'assumed that he was bound to pay the whole bill. The attorney may not have so intended, and there are • some circumstances that tend to show he did not; such as calling attention to the fee bill of the Coos bar, and the fact that he at no . time told the defendant that he was bound to pay the whole sum ; • and still, we think, it was inconsistent with his professional duty to withhold the information asked for, or to leave the matter in doubt as to the nature of his claim.