worth under the circumstances, is properly admissible.' And so it is proper to receive evidence as to the price usually charged and received for similar services by other persons of the same profession, practicing in the same court."

Where an attorney was employed in a number of cases involving a large amount, and a few only of these cases were selected and tried, as test cases, it was held that the entire amount involved was to be considered and not that alone which was represented by the test cases."

§ 850. What Evidence not admissible. Evidence of the amount paid by the opposite party to his attorney is not admissible, nor, in general, is the amount which one attorney receives, any criterion as to the value of the services of another attorney, in the absence of evidence that the services were similar, the skill, standing and experience equal, and the labor the same."

mental anxiety is not so imaginative and shadowy that it should not be considered in arriving at a proper compensation to be allowed in fixing the value of the services rendered. Nor is the number of days which may be given to the preparation of a case alone, even if the exact time could be ascertained in any given Twelve hours case, a governing test.

spent in the study of a novel will not usually be as exhausting as the same time devoted to the study of Coke upon Littleton

would be, even although a great deal more ground might be gone over in the former, than would in all probability be in the latter case.

We can see no analogy between this kind or class of work and that performed by the ordinary laborer, nor can the creditable fact, that generally, where the attorneys amount in controversy is small, or their client is poor, charge and receive much less than their services may in fact have been worth, prevent their recovering a reasonable compensation in proportion to the magnitude of the interests committed to

Local bar rules, prescribing rates of compensation, are not binding upon the client unless it be shown that he had such knowledge of them as to warrant the presumption that he employed the attorney with reference to them.'

8851. Lack of Success no Defense. It is no part of the implied contract of the attorney that he will be successful in everything which he undertakes. He may stipulate that unless successful he shall have no pay; but unless he does so, the fact that his efforts were unsuccessful will not deprive him of his compensation, if he brought to the task a reasonable degree of skill and learning, and performed the service with reasonable care and diligence.'

$ 852. Negligence or bad Faith may be shown. But the client may always show, either in bar or in mitigation of damages, that the attorney so negligently performed his undertaking, or so abused the confidence and trust which were imposed in him, that his services were of no, or little, value to his client." This may be done whether the amount of the attorney's compensation were fixed by special contract or not.

The general rules, heretofore considered, which govern the recoupment of damages in other cases, are applicable here."

§ 853. Fees forfeited by Breach of Trust.-An attorney who collects or receives money for his client, and neglects or refuses, without cause, to pay it to him, thereby compelling the client to resort to an action to recover it, will not be allowed fees for making the collection. If the client be compelled to employ and pay other attorneys and enter into litigation with an attorney to enforce performance of a duty which the latter should have performed voluntarily, it would be highly unjust that he should be obliged to pay the defaulting attorney also."

§ 854. How when Attorney abandons Service. An attorney who is retained generally to conduct a legal proceeding, is pre

1 Boylan v. Holt, 45 Miss. 277.

Bills v. Polk, 4 Lea (Tenn.) 494; Brackett v. Sears, 15 Mich. 244. Rush v. Cavenaugh, 2 Penn. St. 187.

3 Chatfield v. Simonson, 92 N. Y. 209; Caverly v. McOwen, 126 Mass. 222; Pearson v. Darrington, 32 Ala. 227; Maynard v. Briggs, 26 Vt. 94;

Nixon . Phelps, 29 Vt. 198; Porter v. Ruckman, 38 N. Y. 210; Hopping v. Quin, 12 Wend. (N. Y.) 517; Brackett v. Norton, 4 Conn. 517.

See ante, § 647.

5 Gray . Conyers, 70 Ga. 349; Large v. Coyle, Penn. 12 Atl. Rep.

343.

sumed, in the absence of anything to indicate a contrary intent, to enter into an entire contract to conduct the proceeding to its termination; and he cannot lawfully abandon the service, before such termination, without justifiable cause and reasonable notice.' If, therefore, an attorney, without just cause, abandons his client before the proceedings for which he was retained have been conducted to a termination, he will, in those jurisdictions where the stricter requirement of an entire performance prevails, forfeit all right of payment for any services which he has rendered.' Where, however, the more liberal rule of Britton v. Turner prevails, the attorney would undoubtedly be permitted to recover the reasonable value of the service rendered, less any damages which the client might have sustained by reason of the abandonment.'

But if the attorney has sufficient reason to justify his abandonment, he may in all cases recover what the services already rendered are reasonably worth, and if the service had been undertaken for a fixed sum, it has been held that he may treat the cause for abandonment as a prevention of completion by the client, and recover the stipulated price."

§ 855. What will justify Abandonment. No general rule can be laid down by which it can, in all cases, be determined what cause will be sufficient to justify an attorney in abandoning a case in which he has been retained. But if the client refuses to advance money to pay the expenses of the litigation, or if he unreasonably refuses to advance money, during the progress of a long litigation, to his attorney to apply upon his compensation, sufficient cause may be furnished to justify the attorney in withdrawing from the further service of the client. So any con

1 Tenney v. Berger, 93 N. Y. 524, 45 Am. Rep. 263; Bathgate v. Haskin, 59 N. Y. 535; Davis v. Smith, 48 Vt. 54; Menzies v. Rodrigues, 1 Price Exch. 92; Stokes v. Trumper, 2 K. & J. 232; Cresswell v. Byron, 14 Vesey Jr. 272; Nicholls . Wilson, 11 M. & W. 106; Eliot v. Lawton, 7 Allen (Mass.) 274, 83 Am. Dec. 683; Harris v. Osborn, 2 C. & M. 629.

Tenney v. Berger, 93 N. Y. 524, 45 Am. Rep. 263.

See ante, § 636, et seq.

Tenney v. Berger, supra; Eliot v. Lawton, supra.

5 See Kersey v. Garton, 77 Mo. 645, Baldwin v. Bennett, 4 Cal. 392; Hunt v. Test, 8 Ala, 713; Myers v. Crockett, 14 Tex. 257; McElhinney v. Kline, 6 Mo. App. 94; Polsley . Anderson, 7 W. Va. 202, 23 Am. Rep. 613.

Tenney v. Berger, 93 N. Y. 524, 45 Am. Rep. 263; Eliot v. Lawton,

duct upon the part of the client during the progress of the litigation which would tend to degrade or humiliate the attorney, such as attempting to sustain his case by the subornation of witnesses, or any other unjustifiable means, would furnish sufficient cause.' So if the client demanded of the attorney the performance of an illegal or unprofessional act; or if the client were seeking to use the attorney as a tool to carry out the malicious or unlawful designs of the client, the attorney might lawfully abandon the service.' So if the client insists upon the employment of counsel with whom the attorney cannot cordially co-operate, the attorney will be justified in withdrawing from the case.'

cause.

§ 856. When discharged by Client. The client has undoubted power to discharge his attorney at any time and with or without The general retainer of the attorney, as has been seen, implies an undertaking on his part to continue to act until the termination of the proceeding and he cannot abandon the service before that time without good cause and reasonable notice. But while the attorney is thus bound to entire performance, and the contract as to him is treated as entire, it is, as is said by Judge EARL, "a singular feature of the law that it should not be treated

7 Allen (Mass.) 274, 83 Am. Dec. 683.

'Tenney v. Berger, supra.

2 See Burnap v. Marsh, 13 Ill. 535; Peck. Chouteau, 91 Mo. 140, 60 Am. Rep. 236.

་་ "The 3 Tenney v. Berger, supra. attorney" says EARL, J., in this case, "is always interested to know with whom he is to be associated in the trial of a cause. The counsel is supposed to be his superior, and is usually employed on account of his superior ability, experience, reputation or professional standing, and after an attorney has engaged in a cause, it would seem to be quite proper that he should be consulted as to the person who is to bear the important relation to him of counsel. The client would certainly have no right, against the protest of the attorney, to intro

duce as counsel in the case a person of bad character, or of much inferior standing and learning,-one not capable of giving discreet or able advice. It would humiliate an attorney to sit down to the trial of a cause, and to see his case ruined by the mismanagement of counsel. The relations between attorney and counsel, too, are of a delicate and confidential nature. They should have faith in each other, and their relations should be such that they can cordially cooperate. While a client has the undoubted right to employ any counsel he chooses, yet it is fair and proper, and professional etiquette requires, that he should consult the attorney and other counsel in the case, so that they can withdraw, if for any reason they do not desire to be associated with them."

as an entire contract upon the other side." Such, however, seems to be the law.'

The client, however, will not be permitted to discharge his attorney without cause, unless he first pays or secures the attorney's fees and charges, and the court will not enforce a substitution until this has been done. The attorney's lien will also be protected, and where an attorney who took the case upon a contingent fee, and has obtained judgment, is discharged without cause, the client will be required to preserve the attorney's lien upon the judgment."

But although a general retainer does not, of itself, imply a promise on the part of the client to continue to employ the attorney until the termination of the proceedings, the client may, nevertheless, bind himself by contract to so employ him.

Where, therefore, the attorney is not employed for a definite period, he may be discharged by the client at any time, and if the discharge be for no fault of the attorney, he may recover from the client, the reasonable value of the service rendered. So if the attorney is employed for a definite time and is discharged before that time without justifiable cause, he will be entitled to recover from the client the damages he may have sustained by reason of such discharge.' But if the attorney were discharged for a cause which justified it, he would, under the strict rules requiring a full performance as a condition precedent to the recovery of compensation, forfeit all right to pay for the services rendered; but under the rule of Britton v. Turner, he could recover the reasonable value of his services, less any damages which the client had sustained by his default."

8

'In Tenney v. Berger, 98 N. Y.524, 45 Am. Rep. 263.

2 Tenney v. Berger, supra; Ogden v. Devlin, 45 N. Y. Super. Ct., 631; Trust. Repoor, 15 How. Pr. 570; Gustine v. Stoddard, 23 Hun (N.Y.) 99. 3 Ogden v. Devlin, supra; Supervisors v. Brodhead, 44 How. Pr. 411. Hazlett v. Gill, 5 Robt. (N. Y.)

611.

5 Ronald v. Mutual Reserve Fund L. Ass'n, 30 Fed. Rep. 228.

6 Tenney . Berger, supra; Ogden . Devlin, supra.

7 Kersey v. Garton, 77 Mo. 645; Baldwin . Bennett, 4 Cal. 392; Hunt v. Test, 8 Ala. 713; Myers v. Crockett, 14 Tex. 257; McElhinney v. Kline, 6 Mo. App. 94; Polsley v. Anderson, 7 W. Va. 202, 23 Am. Rep. 613.

See ante §635. See Walsh v. Shumway, 65 Ill. 471 in following section, note 2.

See ante § 636. Where the service is substantially completed, attorney entitled to quantum meruit. Whitner v.Sullivan, — S.C.-28. E. Rep.391.