(dissenting).
My brothers think it best to overrule In re Taylor, 2 Cir., 22 F.2d 499, and I shall confine what I have to say in its defense to a small compass. A dissenting opinion is not the place for an analysis of those decisions that preceded and followed it; they seem to me very far from showing that its doctrine has been “now pretty thoroughly repudiated”. As I read them, no decision of a circuit court of appeals (which has not itself been overruled by the same court) touches the point, and those in the district courts are divided. In principle, even if we accept Judge Geiger’s gloss upon the phrase, “unavoidably prevented”, in Re Churchill, D.C., 197 F. 111, as some courts have, I think that the bankrupt at bar should lose. Ordinarily, a client must accept the consequences of his attorney’s neglect like any other principal. Perhaps the law ought to except bankrupts; if so, I may have been wrong in Re Taylor, supra, in suggesting that a bankrupt might be bound to follow up a dilatory attorney. I submit, however, that, if he is to be favored so far, at least he must show some modicum of diligence in selecting his attorney. The doctrine, respondeat superior, is often harsh, but if it is to yield, the most primary considerations of equity seem to me to require at least that much. I agree that it would be absurd to expect of a client an expert’s judgment of his lawyer’s qualifications, but I deny that a careful man makes no inquiry whatever about whom he retains. This bankrupt made none; so far as appears, he knocked at the first door. Had he inquired at all, he would have learned that the attorney he selected had had “very little practice in bankruptcy”. If he had learned that, would anybody think that he should escape all consequences of retaining a man so totally ignorant of the merest rudiments of the subj ect as this man was ? What we are holding is in effect that this bankrupt was “unavoidably prevented”, from retaining a competent lawyer. To that I cannot agree, and I do not believe that it is any answer to say that the law must not be harsh on honest bankrupts.
I think the second order too was right, but since the first is to be reversed, I need not discuss it, except to call attention to the fact that in holding that the bankrupt could properly get an extension of time after September 22, 1938, we are disapproving Re Farrow, D.C., 28 F.Supp. 9, so far as it held, as it did hold, that the amendment to § 14, sub. a, 11 U.S.C.A. § 32, sub. a, deprived the bankrupt of that privilege. As I too disapprove that holding, I concur so far.