Page:The Green Bag (1889–1914), Volume 02.pdf/449

 408

the settlements would still be more advan tageous to the claimants than the judgments obtained after long contests, and which probably have to be divided with attorneys. But what a howl of righteous indignation would go up from the attorneys of the various plaintiffs, who would have to rely for compensation upon the doubtful respon sibility of their clients instead of a good fat judgment! We come now to the consideration of the second question : What part may attorneys take in compromising and settling cases? As a golden rule it may be laid down that attorneys should deal with adverse parties only through their attorneys. The attorney who follows that rule throughout his professional career will be above suspicion of intrigue or unfair dealing, at least in so far as the settlement of cases is concerned. It is an attorney's province and duty to advise his client what to do, whether to settle or litigate; and it is the client's privilege to follow the advice or not, as he sees fit. It is an attorney's duty to keep his client advised at all times, from the first presentation of the claim to judgment and appeal, as to the chances and possibilities of the litigation so far as he can judge of the same; and it is the client's privilege to act at any time upon the information properly afforded him by his attorney. The client may at any time see the opposing party and effect a settlement. With that settlement the attorney who wishes to be above the slightest suspicion, should have absolutely nothing to do, unless his intervention should be necessary to protect his client from fraud or conspiracy in the settlement, and this is quite an important exception. It may not at first sight seem clear why an attorney as the agent of his client may not do what the client or any other agent of his, not an attorney, may do. But the posi tion of an attorney is a peculiar one. His knowledge of the law and of people, his powers as a persuasive reasoner, and so on,

give him a decided advantage over men who are not lawyers, and in his zeal for his client he may say things that will bring about a settlement highly disadvantageous to the opposing party, and one which a court might set aside as fraudulent. And there are many other considerations which it would be superfluous to mention. It does not follow from the rule that an attorney should make no attempt at settle ment, except through opposing counsel, that he is to be in real or feigned ignorance of what his client does. Not at all. It is his duty, if the case warrants it, to advise his client to settle; and if his client informs him that he can settle with the opposite party, it is the attorney's duty to advise his client as to the necessary steps to take to effect a settlement and obtain a release, and it is his duty to draw all necessary papers; but a keen sense of professional honor will keep him away from the opposite party, and he will keep the opposite party away from him. He should act solely as the adviser of his client, and assume that the other party is acting under the advice of his attorney. He has a right to assume that, and has no right to assume that the other party intends to act unfairly with his attorney. If, however, anything has passed between the attorneys which apprises the attorney for the defendant, say of the true relations between the plaintiff and his attorney, and he knows, or has reason to believe, that the plaintiff will act treacherously with his attorney, then the defendant's attorney will act with still greater caution in all he does lest he places it in the power of an unscru pulous party to do a professional brother a wrong. But simply because he happens to know that attorney for plaintiff has entered into a peculiar agreement with his client from which he may suffer, does not alter in the slightest degree his duty to his client, or the right of his client to effect a settlement; but in so far as he can, he should protect the proper rights of a professional brother; that is demanded by professional courtesy.