170 Mich. 435 | Mich. | 1912
Mr. Alfred Canney was sued by his wife. He employed the relator as his solicitor. There was also other litigation in which relator was employed. Difficulty arose between Mr. Canney and the relator. Mr. Canney filed a petition before respondent to have another solicitor substituted in the place of Mr. Lanagan. The latter objected, unless he was paid for the services he had rendered. The circuit judge ignored Mr. Lanagan’s protest, and made the order of substitution without any conditions attached. A motion was made to set aside this order, and that was denied. Mandamus was brought to review this action. Counsel for the respondent cited the case of Canney v. Canney, 131 Mich. 363 (91 N. W. 620). A reference to the case will show it is easily distinguishable from the one now under consideration. So far as it is applicable, it is against the contention of counsel. There is also the same difficulty with the other cases cited by counsel for respondent. In, 20 Enc. Pl. & Prac., at page 1013, it is said:
“ Right of Client to Change Attorney. — Generally speaking, a party has an absolute right to change his attorney at will, at any point in the suit, and without assigning any cause therefor, upon making application for the substitution in the proper manner.
“ Payment of Pees Earned. — This general rule is, however, subject to the exception that the attorney’s fees for services already rendered must be paid or secured to him, where the application for substitution assigns no cause therefor.”
The note says:
“Where a board of supervisors by their vote discharge a firm of attorneys who have been acting in their employ (so far as their vote can discharge them) merely because the supervisors choose so to do, with a view to substitute another attorney for the board, they must pay the firm of attorneys their reasonable claims, which may be .ascer*437 tained by a reference. And the attorneys are not bound to consent to a substitution or to deliver the papers upon which they have a lien, until the amount of their just demands is ascertained by the court or a referee, and paid them. Ulster County v. Brodhead (Sup. Ct. Spec. T.), 44 How. Prac. (N. Y.) 411.
“Matter of Prospect Ave., 85 Hun (N. Y.), 257 [33 N. Y. Supp. 196], in which case the court said:
“ ‘If an unconditional substitution is asked for, this will not be granted unless such misconduct on the part of the attorney is shown as would deny him the protection which the court would otherwise afford him for his fees or for any other lien that he might have. We think, apart from the question of misconduct or bad faith, that a client subject only to the payment of the attorney’s fees in a proper case, or securing them if they cannot then be fixed and determined, has the right, without assigning cause, at any point in a suit or proceeding, to change his or her attorney. While, therefore, the client has a right to a substitution at any time upon payment or the securing of the attorney’s fees — which is but another way of saying that such right is conditional — there is the other right, arising from the misconduct of the attorney, which, when shown to the satisfaction of the court, is unconditional. In one case a substitution is granted as a matter of course upon terms; and in the latter, for misconduct, the substitution is unconditional’ —citing Ogden v. Devlin, 45 N. Y. Super. Ct. 631; Prentiss v. Livingston (Marine Ct. Spec. T.), 60 How. Prac. (N. Y.) 380; In re Paschal, 10 Wall. [U. S.] 483.”
See, also, Green’s Practice (1st Ed.), § 788; 1 Tidd’s Practice (9th Ed.), p. 94; Weeks on Attorneys at Law (2d Ed.), p. 515; New York Phonograph Co. v. Edison (C. C.), 148 Fed. 397. The petition does not allege, and. the order of substitution does not give, any cause for making the change unless a disagreement as to how much the client should pay his solicitor is to be regarded as such misconduct or bad faith as would warrant his discharge.
The order should preserve the lien of the attorney. Jones v. Muskegon Circuit Judge, 95 Mich. 289 (54 N. W. 876); Wipfler v. Warren, 163 Mich. 189 (128 N. W. 178). The writ of mandamus should issue as prayed.
