concurring specially.
1. I concur in Division 1 but not in all that is written.
In this case we are eliminating the implied authority of an attorney to endorse the name of the attorney’s client on a negotiable instrument. No longer does this authority arise out of the statutory provision that “[t]he agent’s authority shall be construed to include all necessary and usual means for effectually executing it.” OCGA § 10-6-50. When John Bean Mfg. Co. v. Citizens Bank of Gainesville, 60 Ga. App. 615 (4 SE2d 924) (1939) was decided, that was Code § 4-301.
Both then and now, the Code section continues: “Private instructions or limitations not known to persons dealing with a general agent shall not affect them. In special agencies for a particular purpose, persons dealing with the agent should examine his authority.” It made no difference in Bean whether the agent was regarded as special or general because there were no private instructions or limitations to begin with, and the law itself provided the authority to endorse, so there was no requirement to inquire. In this case there is a limitation, placed by the client. Since we conclude that before the bank accepts the check for deposit it is obligated to assure that the attorney is authorized, such as by requiring the production of a power of attorney expressly authorizing the endorsement of the client’s name, we position the attorney in the category of special agent.
Thus, what was once not a forgery because the law implied authority where there was no express authorization and no refusal to authorize, now is regarded as a forgery if it is undertaken without express authority. Once it is regarded as a forgery, of course, the bank is liable under OCGA § 11-3-419 (1) (c). One of the problems with implied authority, which the law gives, is that it contravenes a client’s express refusal to grant authority.
*477By requiring express authority to endorse, which may be easily effected by a power of attorney, we are also limiting or altogether eliminating apparent authority as a defense. Of course, as the majority points out, there is no evidence in this case that, from the viewpoint of the bank, the depositor had apparent authority to sign the co-payee’s name. The bank had no dealings whatsoever with the depositor’s client and was totally unaware of how it conducted its affairs.
In In the Matter of Antinoro, 253 Ga. 296 (319 SE2d 460) (1984), the attorney did have a power of attorney given him by his clients, but he used it beyond its intended scope. His contingent fee contract made no mention of no-fault coverage, and the attorney used the power of attorney as authority to endorse his clients’ names on drafts of no-fault payments as to which he was not entitled to a contingent fee. The Supreme Court agreed with the finding that the attorney improperly endorsed the drafts. (The attorney had also endorsed them without permission on behalf of the medical suppliers.) This constituted a violation of State Bar Rule 4-102, Standard 4: “A lawyer shall not engage in professional conduct involving dishonesty, fraud, deceit, or wilful misrepresentation. A violation of this standard may be punished by disbarment.” That case, of course, did not address the liability of the bank.
In the Matter of Frederick M. Scherma, 255 Ga. 206 (336 SE2d 570) (1985), involved a situation in which the attorney used a forged power of attorney as authority to endorse the client’s name on the client’s benefit checks. This was a violation of Standard 4. The attorney had notarized the purported power of attorney without witnessing the signature of his client or obtaining the client’s acknowledgment that the signature was his. The client did not give the attorney authority to endorse the checks. Again, although the bank’s liability was not an issue in this disciplinary matter, it is clearly “implied” that the attorney must obtain express authority. Otherwise, absent a later ratification, the signature is a forgery. Since the attorney cannot sign without express authority, the bank cannot assume that the authority exists.
Bean recognizes the general rule, to which we return without exception: “ ‘As a general rule an attorney can indorse his client’s name to negotiable instruments payable to the order of his client only when he has been expressly authorized to do so . . .’” Bean, supra at 617. The exception is the judicial creation of an implied authority “ ‘where it is a mere matter of form to enable the attorney to effect the purpose for which he was employed by the client.’ ” Id. at 617-618. The rule and the exception were quoted by the court in Bean as having come from CJS, although one of the cases cited is the Georgia case of Patterson v. Southern R. Co., 41 Ga. App. 94 (151 SE 818) (1930). In *478Patterson, there was a long course of dealings which authorized a finding of apparent authority of the attorney to settle the client’s claim, for which the client was bound; the attorney had implied authority to endorse the client’s name, insofar as the liability of the check’s drawer was concerned, because it could have made the check payable solely to the attorney or could have given cash, to effectuate the settlement.
The court in Bean also cites the Georgia case of C & S Nat. Bank v. Davis, 54 Ga. App 836 (188 SE 589) (1936), where the bank was held liable, but distinguishes it because the attorney endorsed the client’s name in his private capacity and not in his capacity as attorney and had specific instructions prohibiting him from endorsing the check. Yet the court in C & S Nat. Bank pointed out that “it should be assumed that a collecting attorney ordinarily has authority, as such, to indorse a check made payable to the order of his client.” Id. at 837 (2). C & S National Bank could not rely on any such implied authority because the attorney did not sign as such. Nevertheless, the court in that case recognized that the issue of whether the attorney has implied authority had not been settled in Georgia and that the foreign authorities were in conflict. So it cannot be said that the court established a principle of “implied authority” in that case. In fact, it stated at the outset of its analysis that “[i]t is the general rule that a drawee bank is liable to the true payee of a check, which it has certified at his instance, if it pays out the money under a forged or unauthorized indorsement of his name, unless the payee is precluded, by his ratification, negligence, or facts creating an estoppel, from setting up the forgery or want of authority. At its peril, the bank must know that the one to whom it pays such an indorsed check prima facie had authority to make the indorsement, and its mere good faith is no defense.” (Citing treatises and foreign cases.) Id. at 836 (1).
The court in Bean sought to justify the creation of implied authority by pointing out that the attorney has an interest in the collection in the nature of his own commission. It relied on the Restatement, not Georgia law. Bean at 619. The Restatement implied the authority as a natural step in obtaining his authorized commission: “If the agent is authorized to remit the amount in changed form, as where he is to deduct his commission, he would ordinarily be authorized to indorse the principal’s name for the purpose of obtaining the bank draft or other thing which he is to remit to his principal.” 1 Restatement of the Law, 172, § 72-e. That is a far cry from implying authority to sign a check from which there is no client-provided authority to deduct a commission. There would be no basis to assume that the attorney was entitled to a commission to be deducted from the check proceeds.
We are also rejecting, as the basis for creating implied authority, *479OCGA § 15-19-6, which provides: “Without special authority, attorneys cannot receive anything in discharge of a client’s claim but the full amount in cash.” That simply does not extrapolate into authority to convert to cash a check made out in the client’s name by endorsing the check in the client’s name. In Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (308 SE2d 544) (1983), the Supreme Court stated in footnote one that “the general application of this section is in regulation of the relationship between attorney and client and in matters in which the claim in question is for a sum certain. . . .” In construing OCGA § 15-19-5 the court confirmed that an attorney has apparent authority to enter into a binding agreement on behalf of a client so that, “where there is no challenge to the existence or the terms of an agreement but only to an attorney’s authority to enter into it, the client is bound by its terms even in the absence of a writing or detrimental reliance on the part of the opposite party.” Id. at 676-677.1 That does not give rise to an authority implied by law, in derogation of an express prohibition by the client, to endorse a client’s name to a check.
Decided December 5, 1994. Groover & Childs, Denmark Groover, Jr., Gregory C. Sowell, for appellant. Thomas H. Pittman, for appellee.OCGA § 7-1-352 provides no relief to the bank in this instance. See Trust Co. Bank of Augusta v. Henderson, 185 Ga. App. 367, 368 (1) (364 SE2d 289) (1987), regarding the meaning of that statute.
2. I fully concur in the remaining divisions.
I am authorized to state that Chief Judge Pope and Judge Blackburn join in this special concurrence.
See Vandiver v. McFarland, 179 Ga. App. 411 (346 SE2d 854) (1986), which criticizes the rule of apparent authority established in Brumbelow. See also Kaiser &c. v. Hancock, 106 Ga. 217 (32 SE 123) (1898), which rejects an implied authority of an attorney to settle a claim.