McKevitt v. Golden Age Breweries, Inc.

Respondents are not entitled to recover from appellant in the absence of a contract of employment. No officer or agent of appellant other than Mr. Weinstein ever made any such contract with respondents. Throughout the litigation that was the basis of their claim, respondents did not do any work or render any service which they would not have had to do and render for their own brewery clients. They did not appear of record as attorneys for appellant. On the pleadings in the superior court, Mr. Weinstein was named as its sole attorney. A joint brief was filed in this court on which all the attorneys for all the breweries were named, it is true; but, surely, that would be no indication that each attorney represented *Page 63 not only his own client, but also all the other litigants on his side of the controversy as well.

No representative of appellant other than Weinstein had any knowledge that respondents were presuming to act as its attorneys, and there was nothing to put any such representative on notice. In the absence of knowledge, there could be neither a meeting of the minds on a contract of employment nor ratification of an employment attempted by Weinstein. Appellant did not knowingly accept the benefits of services rendered for it by respondents. It was merely an incidental beneficiary of services which respondents rendered for their own clients.

This leads logically to what I regard as the crucial question in the present case: Did Mr. Weinstein have authority to employ respondents as appellant's attorneys? As the majority opinion points out, he was secretary-treasurer and a director of appellant corporation. He was not, however, manager or a managing agent. No by-law or any resolution or other action of the board of directors empowered the secretary-treasurer to retain counsel for the corporation, nor was there any evidence that it was customary for him to do so. If Weinstein had authority to bind appellant, then it must have been by virtue of his position as its attorney. The universally recognized general rule is stated in an annotation in 90 A.L.R. 265, 266, as follows:

"It is well settled that an attorney at law has no implied authority to engage associate counsel and impose upon his client a liability for the fees of such counsel."

The exception to this rule, upon which the majority rely, as exemplified by Northern Pac. R. Co. v. Clarke, 106 Fed. 794, that a general counsel may employ other attorneys at the expense of his client, is not applicable here for the simple reason that Mr. Weinstein was not *Page 64 a general counsel. He was a lawyer engaged in general practice, and appellant was one of his clients. If he were a general counsel within the meaning of the exception to the rule, then so would be every other attorney employed by a corporation or an individual client on a retainer and fee basis.

It seems to me that the majority opinion, in effect, announces the novel doctrine, supported by neither reason nor authority, that one becomes liable to an attorney for fees merely by reason of the fact that he is interested in the result of a case in which the attorney's client is a party, and accepts, without objection, the incidental benefit of legal services which extends alike to all persons interested in the litigation. I, therefore, dissent.