Hosford v. Eno

168 N.W. 764 | S.D. | 1918

McCOY, J.

Plaintiff, as an attorney at law, instituted this action to recover, from defendant the sum- of $400 and interest, under a -contract retaining him; to act as attorney for -defendant. Defendant answered, admitting the- contract, but denied -that plaintiff h-ad ever rendered, him any service as attorney by virtue thereof, and that there had been no consideration for -sai-d -contract under which -plaintiff ¡seeks -to- recover. Defendant also alleged that ¡said contract was illegal and void as being against public -policy, by reason of f-acts hereafter appearing. Ther-e was verdict and judgment in- fav-or of ¡plaintiff, and -defendant -appeals.

[1, 2] The sole question to be determined in this -case is whether the respondent, who was -city attorney ¡of Pfatte, Charged-with the -duty of prosecuting appellant for a violation o-f the -ordinances of said city, might legally accept employment' from -defendant to represent him -in- the circuit court, or -out of court, ¡on a criminal -charge against appellant -arising -out of the ¡same transaction, upon which -was based the ¡prosecution for the violation o-f tilie said city ordinances. It is the -contention of appellant that it is against public policy and -sound legal ethics to permit respondent to -accept such ¡services or -enter into a contract to perform services for appellant under such circumstances-, and that therefore the -contract -sued upon ¡was vo-id arid- of no effect. We ¡are of the view, and so hold, that the -contention -Of appellant is -right. It appears from the record beyond -all question that appellant -had been arrested for violating certain ’ordinances of tine- city of Platte/ an'd that the respondent then and there held the office of city attorney of that city, and was charged By law with the duty of prosecuting appellant for the violation of said ordinances, and' that after said arrest of appellant, the respondent entered into- a contract whereby the respondent agreed, for the sum. of $400, to represent and defend) appellant, either in or out lof the circuit court, against a criminal charge in relation to, the same subject-matter andl transaction upon which the charge for violating the city, ordinances was based; in other word's, the respondent by entering into said contract placed himself in the position of attempting to. serve two masters, at Once whose interests were legally hostile to' each other. One of the .professional services incident to the office of city attorney is the duty of prosecuting actions brought on behalf of the .city for violation of its ordinances. The contract entered initio; by'respondent with appellant was in. direct conflict with his duties, as city attorney. The rule is rigid, and designed not -alone to prevent the dishonest practitioner from fraudulent -conduct, but .as well to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties, or be led! to attempt to reconcile conflicting interests, rather than to enforce to- their full extent -the rights of the interest which he should alone represent. Strong v. Building Association, 183 Ill. 97, 55 N. E. 675, 47 L. R. A. 792. An attorney cannot recover for legal services rendered by him both to plaintiff -and defendant -concerning the same transaction. A lawyer, unider.no- circumstances, can recover for services rendered to' parties 'having opposing interests growing out (of the sanie circumstances. (MacDonald v. Wagner, 5 Mo. App. 56. Based upon statute, and every consideration of professional ethics,' it' is generally held by all courts that an attorney that has once been made the recipient of the confidence of a -client concerning certain; subject-matter is thereafter disqualified' from acting for any other .party adversely interested in the same subject-matter. State v. Rocker, 130 Iowa, 239, 106 N. W. 645. In the case of In1 re Cowdery, 69 Cal. 32, 10 Pac. 47, 58 Am. Rep. 545, a -disbarment proceeding, where C-owdery was acting for the -city and1 county of 'San Francisco, and was -charged with the duty of handling certain litigation on the part of said city and county then -pending, entered into’ a contract to. defend in such cases after his term -of office had1 expired, the court said:

“Proper public policy 'dictates that one employed by the choice of the people for a stated period in the capacity of an attorney and counsel for the state, or any portion io;f it, should- not' be allowed to say that he had received mo -confidential communications in his official capacity, anldl therefore -he was at liberty to be retained by the adversaries in the same case .after' his term- -o-f office had expired. It would he -placing before gentlemen -o-f the -bar a temptation to neglect their duties when acting in such public employment which no principle -of law justifies. A just publi-c policy forbids it.”

In the -case ,at bar the -contract was entered' into to -defend appellant -while respondent was still acting as city attorney- and before 'his- term, of office had expired. A -contract of this character might have a tendency to -cause -the -city attorney of Platte to be miore lenient and to more readily -disregard the legal duties he owed to said -city.- As city attorney -he was- presumed to ’have become -acquainted with all the facts, upon which- the prosecution- by the city was based. Hence we -are of the view that the contract in question was wholly v-o.id as 'being against public policy.

[3] While having no- binding force as- a judicial decision or legislative act, but as indicating the general view' of members of the bar, we -call attention to the following provisions o-f the “'Canons of Ethics,” adopted by the American Bar Association and the Bar Association of t-his state:

“It is unprofessional to represent conflicting interests, except by express -consent of all -concerned', given after a f-ull -disclosure of the fa-ct-s. Within the meaning of this -cannon, a lawyer represents conflicting interests w-ben, in behalf off -o-ne -client, it is the duty to contend for that which -duty -to another -client requires him to Oppose.”

The judgment and order appealed from are reversed, and the -cause remanded-, for further -procedure in harmony with this -decision.