dissenting.
I respectfully dissent. In my view we improvidently issued a rule to show cause. The bare bones record before us simply does not support our granting a writ of prohibition or mandamus. C.A.R. 21. The record consists of a self-serving petition in the nature of prohibition, an affidavit by Bruce Lampert, and two short transcripts of proceedings in the District Court for Gilpin County. In my opinion, the issues created by counsel for the petitioner are not properly postured for review. If relief is to be granted, it should only be granted after a full hearing in the trial court.
It is undisputed that Shelley B. Don and Bruce A. Lampert filed a civil action' against Alan D. Harger on behalf of their client, Melvin Cross, who alleged that he was assaulted by Harger. The petitioner Cross requested that the district court grant probation to Harger in the course of the criminal proceedings which were based on the same facts that were alleged as grounds for relief in the civil assault action. Thereafter, at the sentencing hearing Lam-pert appeared for Cross and the following statements and agreements were made:
“THE COURT: I am going to allow counsel for the victim to make a statement if he desires.
“MR. LAMPERT: Basically our position is set forth in our motion and affidavit.
“THE COURT: What motion and affidavit?
“MR. LAMPERT: I was informed it was part of the file. It arrived here several days ago.
“THE COURT: I didn’t realize that.
“MR. LAMPERT: Yes, Your Honor. Basically what it states is that the Colorado Revised Statutes do provide for restitution as a condition of probation. This has been reenacted in a recent amendment, 16-11-204.5, reaffirming the Legislature’s intent restitution be mandatory upon probation.
“The victim really has no position with regard to the disposition of this matter, however, if probation is granted, we would ask the Court to order restitution in accordance with the ability to pay, and we have submitted bills of Mr. Melvin Cross in the amount of $6,906.21 which were incurred as a direct result of the injuries inflicted in this incident.
“THE COURT: What is the victim’s position, concerning if this Court ordered restitution on that basis, what would the victim’s position be concerning the civil action? Would you still proceed with that?
“MR. LAMPERT: Your Honor, what we would agree to do is hold the civil action in abeyance pending regular payments of restitution. We would be hesitant to.dismiss the action, but we would hold it in abeyance.
“THE COURT: With the understanding that—
“MR. LAMPERT: When that amount is paid, it would be dismissed with prejudice.
“THE COURT: Where is it pending?
“MR. LAMPERT: I believe it is in this Court, Your Honor.
“THE COURT: The Clerk informed me it’s set for jury trial in October. What would you do about that?
“MR. LAMPERT: Well, if we would have the restitution ordered, we would ask the Court to continue that setting and leave it remain on the docket pending completion of restitution.
“THE COURT: Mr. Marks, do you have any further remarks?
*43“MR. MARKS: No, Your Honor — yes, Your Honor. My understanding of the situation regarding restitution and the effect it may have upon the pending civil suit is as counsel has indicated. I do not represent Mr. Harger on that case. Mr. Larry Pozner does. However, I have conferred with Mr. Pozner, and he has previously indicated to me that if this matter were resolved upon the basis of restitution that this Court orders, that would be satisfactory to him. I have conferred with Mr. Harger regarding this, and he further indicates that that would be satisfactory.”
Thereafter, the court granted probation and ordered that the defendant make restitution by paying $6,906.12 in medical expenses which Cross incurred as a result of the assault by Harger.
The second transcript in the criminal case relates to the effort of the petitioner to go forward with discovery and trial of his civil action against Harger for the injuries he suffered when the assault was committed. It is clear that Lampert agreed to hold the civil action in abeyance during the time the defendant complied with the court’s order of restitution. No appearance has been made on behalf of the respondent court and, in my view, we improvidently issued a rule to show cause based upon the allegations and the record made by the petitioner.
This is not the case to establish broad rules which insulate a client from an agreement made by his counsel in open court in an effort to secure benefits for his client. A client is not bound by a settlement agreement made by his lawyer when the lawyer has not been granted express or implied authority by his client to enter into the settlement. Radosevich v. Pegues, 133 Colo. 148, 292 P.2d 741 (1956). See Virginia Concrete Co. v. Board of Supervisors, 197 Va. 821, 91 S.E.2d 415 (1956), Annot. 56 A.L.R.2d 1283, Authority of Attorney to Dismiss or Otherwise Terminate Action. However, a client is bound by his lawyer’s agreement as to procedural matters even though the client did not grant authority or agree to the procedure. Thus, in my view, the trial court properly held Cross to the agreement made by his lawyer to hold the case in abeyance until restitution was made in accordance with the probation order even though the client may not have been bound by an agreement on the substantive issue. See Engelhardt v. Beil and Howell Co., 327 F.2d 30 (8th Cir. 1964).
An attorney who enters into an agreement in open court in an effort to secure a favorable ruling for his client, without first obtaining authority from his client, violates his responsibility as an officer of the court and should not be granted relief from his agreement without carrying a heavy burden. Lampert, by entering into the agreement in open court, presumptively had his client’s authority to make the agreement. See Thomas v. Colorado Trust Deed Funds, Inc., 366 F.2d 136 (10th Cir. 1966).
Accordingly, I would remand this case to the trial court for a further hearing to determine whether Lampert had authority to make the agreement as to both the procedural and settlement issues which are before us. See Hawkins v. District Court, Colo., 638 P.2d 1372 (1982).