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Such lien exists in favour of a clerk in court in chancery, even though he should not be the agent of the solicitor, but employed by the solicitor's agent ;h and also in favour of a clerk in the crown office.i A clerk in court cannot retain deeds from the client for money lent by him to the solicitor, to enable him to carry on the cause ; Grey v. Cockerill, 2 Atk. 114.
It is scarcely necessary to observe, that the right of lien may, like all other rights, be counteracted or superseded by agreement, and, therefore, where deeds were deposited for the express purpose of securing future advances, they could not be retained for an antecedent debt.
An attorney having a lien on the money recovered As to money by his client, may, if it should come into his hands, recovered. retain thereout the amount of his bill; he may stop it in transitu if he can lay hold of it. By application to the court he may prevent its being paid over until his demand is satisfied. If the attorney give notice to the defendant not to pay till his bill be discharged, a payment by the defendant after such notice would be in his own wrong, and similar to paying a debt which had been assigned, after notice.
The court upon motion will compel an attorney to As to deeds. re-deliver documents, on payment of what may be due to him in the cause for which they were delivered. If they were delivered for a special purpose, he cannot detain them for another demand ; (7 East, 50.)
Formerly, if an attorney practised in his own name in a court in which he had not been admitted, he could maintain no action for his fees, nor had he any lien for his costs or money disbursed; (Latham v. Hide, 1 Dow. P. C. 594 ; 1 Crom. and Meeson, 128 ;)
,h Farewell v. Cocker, 1 P. Williams, 460; 3 Burr. 1313 ;
i Waldrons, case 2, Strange, 1126.
but since the passing of the 1st Vict., cap. 56, an attorney or solicitor admitted in one court may practise in the others, if his name be enrolled accord. ing to the provisions of the 1st and 2d Vict., c. 45.
There does not appear to be any precise limit to the time within which a solicitor's bill may be taxed. The payment of a bill is not considered as a waiver of the right of taxation ;m but the court, after payment, and a subsequent acquiescence of any length of time, will not direct taxation, unless very gross charges are distinctly pointed out;u nor where the bill has been paid to the solicitor while living, will taxation be directed against his representatives.o
An agreement between an attorney and his client, fixing his charges at a particular rate, will not deprive the latter of his right of taxation, and the taxing officer will exercise his discretion in following or disregarding the agreement as he may think fit.
Where in equity the common order for taxation has been obtained without notice to the solicitor, in cases where it is unfit that the order should be made as a matter of course, such order will be discharged without a discussion of the merits of the case.
Where, upon taxation of his bill of costs, more than a sixth is taken off, a solicitor or attorney is, under 2d Geo. JI., cap. 23, sec. 22, liable to pay the costs of the taxation ; but as such costs are considered in the nature of a penalty for the excessive demand, they are payable only by the party making such demand, and not by his personal representatives after
m Howell v. Edmunds, 4 Russ. 67.
* Plenderleath v. Frazer, 3 V. and B. 174; Norfolk v. Smith, 2 M. and Cr. 495.
• Maddeford v. Austwich, 3 M. and Cr. 423. P Drax v. Scroope, 1 Dowl. 69; 2 Barn, and Adol, 580. a Gregg v. Taylor, 1 Beav. 123.
his death, or his assignees, in case of "bankruptcy or insolvency.
If the client is resident abroad, the solicitor may insist upon his giving security for the cost of taxation previous to his bill being taxed.s
It appears that though trustees, who have employed and even paid a solicitor, are satisfied with his bill, and do not choose to take any steps to procure its taxation, the cestuique trusts, out of whose funds the bill must be paid, may make use of their trustees' names in order to procure a taxation.
As attorneys and solicitors are sometimes called upon to give evidence in reference to matters which came to their knowledge as professional men, where they have not the benefit and indemnity of a judge's opinion to guide them as to the propriety of the required disclosure, a short reference to the cases upon privileged communications may not be altogether unacceptable to the profession, especially when it is considered that any mistaken view of their duty in this respect may subject professional men to considerable expense, if, on the one hand, they decline answering questions they are bound to answer," or may, on the other hand, endanger the interests of their clients by making known that which it was their client's privilege and their own duty to have refrained from disclosing.
Though the correct application of the principles is not always very easy, the principles themselves are very simple.
: Willasey v. Mashiter, 3 M. and K. 293; Alsop v. Lord Oxford, 1 M. and Cr. 26.
' In re Passmore, Beav. 94. * Hazar v. Lane, 3 Mer. Cro. 285; Grave v. Sansom, 1 Bea. 297.
Sawyers v. Birchmore, 3 Mylne and K. 572.
As it is necessary for the fair investigation of and adjudication upon every case, that parties should be put as much on an equality as possible, and this equality could never be obtained if parties were compelled to conduct their own cases in person, they were permitted to employ others to act in their stead, or, as it is now more technically called, as their attorneys, in the conduct of their suits in the different courts of justice. And as they were not permitted to give evidence for themselves, on the one hand, so, on the other, they were not compelled to give evidence against themselves and for their opponents. The same rule was applied to those who represented them in court, whether as counsel or attorneys, who could not, therefore, be compelled to give evidence of what was communicated to them by their employers or clients, for the purpose of qualifying them to conduct their cause, and fairly represent their interests.
It must be acknowledged at once, that, unless this rule prevailed, little would have been the value of the privilege of appointing another to conduct a cause, for what could an attorney do for his client, if ignorant of the nature of his case, and how would a person venture to give that information necessary to qualify him to conduct his case, with the know. ledge that he was thereby making his counsel or at. torney the witness upon whose evidence his estates might be recovered from him, his reputation lost, or even his life forfeited ?
From these few observations it will be seen, that the person employing the attorney is alone interested in bis secrecy as to the communications that he may have made to them, and that the attorney cannot insist upon it as his right, or waive it at his pleasure ; such secrecy is his duty, but his client's privilege, "and, unless waived by him, continues during the whole life of the party confided in," though the relation
Parkhurst v. Lowton, 2 Swanst. 216. w Wilson v. Rastall, 4 T. R. 759.
of client and solicitor may have long ceased to exist between them. And this rule is so strictly enforced, that a party would not be permitted to employ an attorney in the conduct of a suit in which such attorney had previously been engaged for the opposite party, though he might have previously ceased to have been employed, considering that the knowledge which such attorney must have obtained by his previous employment on the other side would give an advantage to the party seeking to engage his ser
So great is the respect which the law shows to this privilege, that a party may in many cases be excluded from obtaining, by the examination of the solicitor, that information which the client himself would not be allowed to withhold.
The exception to the general right which a litigant has to the evidence of every one on his behalf, which exists in the case of attorney and counsel, is strictly confined to the cases which gave rise to it, and the client is therefore not entitled to prevent his opponent from examining his attorney upon any matters which were not communicated by him to such attorney in that character. Solicitors and attorneys, and their agents, proctors, and counsel, are considered as being within the rule, but it does not extend to medical men, spiritual advisers, or any other persons but those I have mentioned. Letters, and other communications, therefore, between co-defendants, with reference to their defence, are not protected from discovery. If an attorney were compellable to disclose the advice he gives, or the communications he may make to his client, the privilege of the latter would be but a dead letter, such advice