In denying the motion for a substitution, the learned judge below stated that he did not “think that the moving party is entitled to substitution, as a matter of right, in this case. Some misconduct should be shown on the part of the attorney.” If what had been here sought was an unconditional substitution, the conclusion thus arrived at would have been right. The application, however, was not for an unconditional substitution, but for a substitution, and this the court had the right to grant upon such terms as were just. The question presented is, then, was the client, upon the showing made, entitled to any relief?
As held by this court in the case of Pierce v. Waters, 10 Wkly. Dig. 432 (headnote):
“Upon an application by a party for substitution of another attorney in place of his attorney of record, ordinarily the court will see that the attorney is protected as to his fees; yet, where the attorney’s conduct has been improper or neglectful, the court will deny this protection, and direct an unconditional substitution, leaving the attorney to his action for his fees."
“The relations between counsel and client are of a very delicate and confidential character, and, unless the utmost confidence prevails between them, the client’s interest must necessarily suffer.”
While, therefore, the client has a right to a substitution at any time upon payment or the securing of the attorney’s fees,—which is but another way of saying that such right is conditional,—there is the other right, arising from the misconduct of the attorney, which, when shown to the satisfaction of the court, is unconditional. In one case a substitution is granted as a matter of course, upon terms; and in the latter, for misconduct, the substitution is unconditional.
There is no force in the suggestion of the respondent that the written power constituted him an attorney in fact with an interest, and that, therefore, the client could not upon any terms substitute another in his place. There is nothing in the power itself which states or indicates that he was to be the attorney in fact; and the fair construction of the instrument is that he was retained and given all the power that an attorney ordinarily has in such a proceeding, the purpose of it being definitely to fix the amount of his compensation, which could have been provided for just as well by parol, but which the parties, for greater certainty, reduced to writ
We think, therefore, that, without assigning any reasons, Mrs. Dodin was entitled to a substitution. We do not decide that, by reason of the misconduct of the attorney in borrowing from her, she is entitled to an unconditional substitution, but that, subject to proper provision to be made in the order for the compensation, to which he may be entitled, the order should be reversed, and the application for a substitution granted. We cannot, however, overlook the fact, which is not denied, that the attorney has $3,000 of her money, which is represented by the judgment she, obtained against him, and to that extent he is secured. We think that the provision in the order should be that either party should have leave to apply for a reference, now or hereafter, to determine the amount of the attorney’s lien, as against which she should have the right to offset the $3,000 borrowed from her, she only being' required to pay him any additional amount that may be found to be due him; and, if the amount due him for compensation is less than the amount of the judgment, that he should be credited with that sum upon the judgment.
Order reversed accordingly, and the application for substitution granted, with $10 costs and disbursements.