10 Daly 295 | New York Court of Common Pleas | 1882
[After stating the facts as above.]—The learned judge at special term disposed of this case properly. The plaintiff, while employed as attorney for one party to the litigation, in consideration of a sum of money to be paid himself, bargained with his client’s adversary to release part of the subject matter of the claim in suit to the latter, and actually did so release it without the knowledge or consent of his client, and did receive a portion of the price of his act. He thereby forfeited all claim to compensation in that particular litigation (Herrick v. Catley, 1 Daly, 512; Currie v. Cowles, 6 Bosw. 452-460).
The principle on which this decision rests applies although there is no proof that the client has suffered actual damage from the breach of duty of the attorney; the law will not stop to inquire whether the benefit which the attorney reaped by accepting pay from the other side was accompanied by any material injury to the rights of his client. It will assume that the advantage which the adversary values so much as to be willing to pay for, is of equal importance to the client to retain.
If any other rule were adopted, an attorney might bargain at every stage of an action to allow privileges and advantages to the other side for pay, and, unless his client could show than he was ultimately injured by such acts, could yet recover as for a proper discharge of his duty. The obligation of an attorney to his client is not less than that of a broker to his employer, and as to the latter it has been long established that he cannot take pay from both sides, and that he forfeits all right to compensation from his employer if he accept compensation from the other party.
The attorney’s right to compensation depends upon full performance of his duty, and such performance is conclusively disproved by showing that he corruptly bargained with his client’s adversary to relinquish any right or grant any advantage.
The effort was made to show that Samuel Wood knew of this transaction. He was informed that Samuel A. Wood desired the release, but did not assent to it, or make any answer. He was not informed that his attorney was offered and was to receive $1,500 for giving the release. This was the important feature in the transaction.
It is said that the act in question is ratified by defendants setting it up as a counter-claim in their answer. The facts are set forth, and defendants are entitled to any relief which those facts warrant, irrespective of their demand. They ask to set off this money against any demand which plaintiff may establish, and for judgment in their favor for the balance, but this does not prevent their using the facts as a defense to the claim.
The exceptions should be overruled, and judgment entered for defendants, with costs.
Beach, J., concurred.
Exceptions overruled, and judgment ordered for defendants, with costs.
