§ 284.Change of attorney

Code Commissioners' Note. Authority of attorney to act. Power of court to pass upon their authority. In the case of Board of Commissioners v. Younger, 29 Cal 147, 87 Am Dec 164, the commissioner had retained counsel to bring the action. A trial had been had, resulting in favor of the commissioners, and a new trial granted. At that stage of the case, the commissioners, without substituting another attorney of record, and without the knowledge of their attorney of record, compromised the action, and authorized the attorney of defendant, in writing, to appear for them and dismiss the action, which he did; but the motion was resisted by the commissioner’s attorney of record, upon the ground, among others, that he was still the attorney of record of the commissioners, and, as such, entitled to manage and control the case until displaced and another substituted of record. The court, nevertheless, dismissed the action, and the supreme court reversed the judgment, holding, in effect, that where a party retains an attorney to bring or defend an action, the attorney has the right to control and manage the case until he has been superseded by another in the manner dictated by the tenth section of the statute in relation to attorneys and counselors, which provides that an attorney in an action or special proceedings may be changed at any time before final judgment; First, upon his consent, filed with the clerk or entered upon the minutes; second, upon the order of the court, or judge thereof, on the application of the client. The question there was, whether the court was bound to recognize the attorney of record as possessing the right to manage the case, or could, at pleasure, ignore him altogether, and recognize another as having that right. But the question here is, whether the court has the power to inquire as to the retainer of the attorney, upon the suggestion of the client that he has abused the license of the court, and brought the action without any authority. Upon such a question we have no doubt as to the power. Attorneys are the officers of the court, and answerable to it for the proper performance of their professional duties. They appear and participate in its proceedings, only by the license of the court, and if they undertake to appear without the authority from the party whom they profess to represent, the act is an abuse of the license of the court, which, upon the application of the supposed client, the court has the power to inquire into and correct summarily. Otherwise the very fountain of justice might become polluted, and a license to stir its waters become a license to defile them. An attorney’s license is prima facie evidence of his authority to appear for any person whom he professes to represent, but if the supposed client denies his authority, the court may require him to produce the evidence of his retainer under the supervisory power which it has over its process and the act of its officers, and that, too in the mode which was adopted in this case, as was suggested in Turner v. Caruthers, 17 Cal 431. It has also been held that the court may require an attorney to show special authority upon the application of the opposite party when justice requires it. McKiernan v Patrick, was an action by McKiernan and Anderson as the indorsees of two promissory notes. The defendants held a set–off against McKiernan, and made a motion for an order upon the plaintiffs’ attorneys to produce their authority for using the name of Anderson, which motion was supported by an affidavit to the effect that the notes in suit were the exclusive property of McKiernan, against whom they held a set–off, that Anderson was a myth, or if not, his name had been fraudulently used, without authority, for the purpose of avoiding the defendants’ set–off as a defense to the action. The plaintiffs’ attorneys showed cause, and informed the court that they received the notes from McKiernan, with instructions to sue as had been done; that they had no communication with Anderson, and had no personal knowledge of him, but they understood that he was a friend and near neighbor of McKiernan in Alabama; that, since the motion was made, they had written to both the plaintiffs for information, but had received no answers. The court denied the defendants’ motion. Subsequently, judgment passed for the plaintiffs, and the defendants appealed, and specified as error the overruling of their motion for a rule upon the plaintiffs’ attorneys to show by what authority they prosecuted the suit in the name of Anderson; and the appellate court reversed the judgment, with instructions to retry the rule, and if the plaintiffs’ attorneys failed to produce satisfactory authority for bringing the action in the name of Anderson, to dismiss it. McKiernan v Patrick, 4 How (Miss) 333; Clark v. Willett, 35 Cal 538. Subd 2. See People v. Norton, 16 Cal 436.