CH. XIX. s. 8. A contract to serve one person amounts to a contract not to Contracts of serve another (c); but in the absence of a negative stipulation, a Employment (Servants). manufacturing company whose manager agreed to give the whole Service of of his time to the company's business is not entitled to an injuncother person tion to restrain the manager from giving part of his time to rival company (d), though he might be either dismissed or sued for damages (e). than employer. Solicitation of late employer's customers lawful, In the absence of special covenant (ƒ), a clerk or servant who has left or been discharged, cannot be restrained from soliciting or doing business with the customers of his former employer (g); but it is an implied term of every contract of service that the servant will not use to the detriment of the master information acquired in course and by reason of the service. Therefore where the defendant while managing a game farm for the plaintiff secretly copied from his master's order book a list of the names and addresses of the customers with the intention of using for the purpose of soliciting orders from them and did so use it, he was not only held liable to pay damages, but restrained by injunction from making further use employment. of the information he had obtained (h). but not disclosure of information acquired in course of Solicitor must give his personal attention to the client's business. SECT. 9.-Solicitors (i). (a) Personal Attention. It has been held that in an action on a solicitor's bill, it must appear that the client has had the advantage of the solicitor's personal advice; and, therefore, a solicitor cannot recover fees in a suit in which the client consulted and retained the solicitor's clerk, who lived at a distance from his principal, if the clerk were left without instructions, or the means of conferring constantly with his master (k); but the extent to which such a case would be followed at the present day, when ex necessitate rei personal attendance has become much more difficult to give, is doubtful. (c) See Lumley v. Wagner (1854), 1 (d) Whitwood Chemical Co. v. Hard- (f) National Provincial Bank of Eng- (g) In re Irish (1888), 40 Ch. D. 49 ; as to letters coming to him at former address, see Stapleton v. Foreign Vineyard Association (1864), 12 W. R. 976; Her mann Loog v. Bean (1884), 26 Ch. D. 306, C. A. (h) Robb v. Green, [1895] 2 Q. B. 315, C. A., affirming Hawkins, J., and see the cases there cited, and also Louis v. Smellie (1896), 73 L. T. 226, C. A. (i) See Cordery on Solicitors; Chit. Stat., 15th ed. tit. "Solicitors." (k) Hopkinson v. Smith (1822), 1 Bing. 13. When a solicitor's clerk may sue clients for business done at his master's office, the clerk, by agreement with the master, being entitled to that department of business; Pinley v. Bagnal (1782), 3 Dougl. 155. (b) Want of Qualification. CH. XIX. s. 9. Contracts of Employment proper quali A solicitor cannot recover his charges for business done by him (Solicitors). in that character, unless his certificate was in force during the How affected by want of period within which the work was done (1). But where the client obtained an order in equity for the taxation of his solicitor's bill, fication." with the usual submission to pay what should be found due; it was held that the taxing-master was not justified in disallowing certain items, merely because they were incurred between the time of the expiry and that of the renewal of the solicitor's certificate (m). And if the plaintiff was duly qualified as a solicitor at the time the work was done, he will be entitled to recover, although he may have ceased to be so at the time of action brought (n). (c) Solicitor's Remuneration. Solicitor and client may by the Attorneys and Solicitors Act, Agreement in writing under 1870, 33 & 34 Vict. c. 28, or the Solicitors' Remuneration Act, Act of 1870. 1881, 44 & 45 Vict. c. 44, s. 8, make an agreement in writing (0), which need be signed by the client only (p), that the solicitor shall be remunerated either by a gross sum or a percentage, or a salary; but if such agreement is objected to by the client as unreasonable or unfair, the taxing-master may inquire into it, and certify to the Court, who can then cancel the agreement. An agreement not to charge anything for costs need not be in writing (q), but an agreement by a client to pay a lump sum in discharge of past costs must be (r). Remuneration In default of special agreement the solicitor's charges must Solicitors' conform to the scale laid down in the Solicitors' Remuneration Order. Order made under the Solicitors' Remuneration Act, 1881, if the business be non-contentious. In any case the bill, before it can be sued on, must be prepared, signed and sent in in accordance with "Signed the Solicitors Act, 1843, 6 & 7 Vict. c. 73, s. 37, by which no action for the recovery of any fees, charges or disbursements may (1) Solicitors Act, 1843, 6 & 7 Vict. c. 73, s. 26; Duke of Brunswick v. Crowl (1849), 4 Exch. 492. (m) Re Jones (1869), L. R., 9 Eq. 63. (n) Williams v. Jones (1841), 2 Q. B. 276. (0) In re Lewis (1876), 1 Q. B. D. 724; In re Russell (1885), 30 Ch. D. 114; Jennings v. Johnson (1873), L. R., 8 C. P. 425; Bewley v. Atkinson, 13 Ch. D. 283, C. Á. ; and as to champerty, see also James v. Kerr (1889), 40 Ch. D. 449. Where the agreement is for non-professional work with the client, a common order for taxation cannot be made; In As to effect of bankruptcy of client, (p) Thompson, In re, Baylis, Ex parte, [1894] 1 Q. B. 462. (q) Jennings v. Johnson (1873), L. R., 8 C. P. 425. (r) Russell, In re (1885), 30 Ch. D. 114. bill." CH. XIX. s. 9. be commenced until the expiration of one month after the delivery Contracts of of the bill to the party to be charged therewith, and elaborate Employment (Solicitors). provisions are made for a reference of the bill to taxation, on the application of the party chargeable. When the solicitor's negligence affords a defence to an for his fees. (d) Effect of Solicitor's Negligence. The law implies a promise on the part of a solicitor, that he will conduct the business entrusted to him, with a reasonable degree of care, skill, and despatch. But the earlier cases did not afford a action by him very satisfactory answer to the question, whether a solicitor's negligence or unskilfulness constitute a defence to an action by him for his bill; or whether they merely form matter for a cross-action or counter-claim against him. It seems to be now settled, however, that the negligence or unskilfulness of the solicitor do not afford a complete defence to such an action unless, by reason thereof, the client has obtained and can obtain no benefit whatever from his services (8); and that where some benefit has accrued, or may arise from the exertions of the solicitor,—although a part of the advantage which might have been secured is lost by his default or misconduct, this shall merely go to reduce the amount of his demand (t). To render the solicitor liable, there must be lata culpa or crassa negligentia a gross default, negligence, or ignorance. And if the solicitor has acted bonâ fide to the best of his skill, and with an ordinary degree of diligence, he will not be responsible (u). The law on this subject was very fully stated by the late Lord C. J. Tindal (x) as follows:-"It would be extremely difficult to define the exact limit, by which the skill and diligence which an attorney undertakes to furnish in the conduct of a cause, is bounded; or to trace precisely the dividing-line, between that reasonable skill and diligence which appears to satisfy his undertaking, and that crassa negligentia or lata culpa mentioned in some of the cases, for which he is undoubtedly responsible. The cases, however, appear to establish, in general, that he is liable for the consequences of ignorance or non-observance of the rules of practice of his Court, for the want of care in the preparation of the cause for trial, or of attendance there with his witnesses, and for the mismanagement (s) Bracey v. Carter (1840), 12 A. & E. 373; Huntley v. Bulwer (1839), 8 Scott, 325. (t) Cox v. Leech (1857), 1 C. B., N. S. 617; Long v. Orsi (1856), 18 C. B. 610. (u) Purves v. Landell (1845), 12 C. & F. 91; Russell v. Palmer (1767), 2 Wils. 325; Pitt v. Yalden (1767), 4 Burr. 2060; Laidler v. Elliott (1825), 3 B. & C. 738; and see Frankland v. Cole (1832), 2 C. & J. 590; Chapman v. Chapman (1870), L. R., 9 Eq. 276; Baikie v. Chandless (1811), 3 Camp. 17; 13 R. R. 738; Whiteman v. Hawkins (1878), 4 C. P. D. 13. (x) See Godefroy v. Dalton (1830), 6 Bing. 460. of so much of the conduct of a cause, as is usually and ordinarily CH. XIX. s. 9. allotted to his department of the profession; whilst, on the other Contracts of Employment hand, he is not answerable for error in judgment upon points of (Solicitors). new occurrence, or of nice and doubtful construction, or of such as are usually intrusted to men in the higher branch of the profession of the law." And, accordingly, a solicitor is not responsible for the consequences of a mistake in a point of law, upon which a reasonable doubt might be entertained (y); or for a mistake in a nice point of practice, arising on the meaning of an Act of Parliament (2), or of a rule of Court (a). But where the plaintiff's attorney suffered the case to be called Cases of on at the trial, without previously ascertaining whether a material negligence. witness (whom the plaintiff had undertaken to bring into Court) had arrived, and the plaintiff was nonsuited in consequence: it was held, in an action against the attorney for negligence, that it was properly left to the jury to say, whether he had used reasonable care in conducting the cause; and the jury having found in the negative, the Court refused to disturb the verdict (b). So, where it appeared that the attorney in a cause which was about to be tried, delivered a brief to counsel, but that he did not, either by himself or by a competent clerk, attend at the trial, so as to give such information upon the matter as counsel might require; this was held to support a charge against the attorney, of having “neglected to instruct counsel" (c). And a jury may find a solicitor guilty of negligence, if he omit to notice particular conveyances and deeds, in laying an abstract before a conveyancer; or if, instead of leaving the whole case to counsel, he chooses to draw his own conclusions, which turn out to be incorrect (d). So, a solicitor will be liable for negligence if he rely on a mere partial extract from a will, produced by the party to whom his client is about to lend money on the security of a legacy given by the will; unless it appear that the client took upon himself the charge and responsibility of examining the will (e). So, he has been held responsible for not exercising a reasonable discretion, in taking out execution upon a judgment after a compromise, where the execution was set aside, as being contrary to good faith, and vexatious (f). But if he compromise (y) Kemp v. Burt (1833), 4 B. & Ad. 424. See also Bulmer v. Gilman (1842), 4 M. & G. 108; Elkington v. Holland (1842), 9 M. & W. 659. (2) Chapman v. Van Toll (1857), 8 E. & B. 396. (a) Laidler v. Elliott (1825), 3 B. & C. 738; per Lord Tenterden, C. J., Montriou v. Jefferys (1825), R. & M. 317. (b) Reece v. Rigby (1821), 4 B. & Al. 202. (c) Hawkins v. Harwood (1849), 4 Exch. 503. (d) Ireson v. Pearman (1825), 3 B. & C. 799. (e) Wilson v. Tucker (1822), 3 Stark. 154. (f) Shaw v. Arden (1832), 9 Bing. 287. CH. XIX. s. 9. an action contrary to the direct orders of his client he will be liable Contracts of in damages (g). Employment (Solicitors). Liability for negligence cont. Advice of counsel. Loss of deed. Breach of confidence. Taylor v. Delivery up of papers. And it would seem that the mere fact of the solicitor having acted in the manner complained of, according to the advice of counsel, will not in all cases relieve him from responsibility; the rule being, that his liability must depend upon the nature and description of the mistake or want of skill with which he is charged; and that he cannot shift from himself such responsibility, by consulting another where the law would presume him to have the knowledge himself (h). A solicitor however is not answerable for his absence of counsel at a trial (i). If a solicitor lose a deed which is intrusted to him, this will be primâ facie evidence of negligence (k). If he be guilty of a breach of professional confidence, he will be liable for any damage thereby occasioned to his client (1), as was held in Taylor v. Blacklow, in which a solicitor retained specially to raise money on mortgage disclosed a defect in his client's title to his client's brother, for whom he acted generally (m). And where a solicitor is called upon by his client to deliver up papers of which he, the solicitor, has charge, he is bound to deliver them in reasonably fit order and condition for use; and is liable to an action by the client if he neglect to do so (n). Special Nor is it necessary for the plaintiff, in order to maintain an action damage need not be proved. against a solicitor for negligence, to prove that he has sustained special damage by reason of such negligence (o). And where all attorney was instructed by his client, to defend him against an action for negligent driving, and the attorney suffered judgment to go by default; it was held that it was not necessary for the plaintiff, in order to maintain his action against the attorney for negligence, to prove that he had a defence to the action against him; but that it was for the attorney to prove, if he could, that there was no defence thereto (p). Costs. And on taxation of the costs of an action, the Court or taxingmaster may disallow and order to be paid by the solicitor any costs occasioned by the delay or misconduct of the solicitor (q); but if the negligence goes to the length of occasioning the loss of the (g) Fray v. Vowles (1859), 28 L. J., Q. B. 232; Butler v. Knight (1867), L. R., 2 Ex. 109. (h) Per Tindal, C. J., Godefroy v. Dalton (1830), 6 Bing. 460. (i) Lowry v. Guilford (1832), 5 C. & P. 234. (k) Reeve v. Palmer (1858), 5 C. B., N. S. 84. (1) Taylor v. Blacklow (1836), 3 Scott, 614; and see Doe d. Peter v. Watkins (1837), 3 B. N. C. 421. (m) Taylor v. Blacklow, supra. (n) North-Western Rail. Co. v. Sharp (1854), 10 Exch. 451. (0) Per Tindal, C. J., and Park and Gaselee, JJ., Godefroy v. Jay (1831), 7 Bing. 413. (p) Godefroy v. Jay (1831), 7 Bing. 413. (2) R. S. C. 1883, Ord. LXV., r. 11. |