Sweetland, J.
This is a complaint against the respondent, as an attorney and counsellor at law, setting forth that the complainant, as executor of the will of Mary Holden, placed in the hands of the respondent, as his attorney, fifteen hundred dollars to be used by him for the specific purpose of settling three legacies of five hundred dollars each due to Martha J. Magill, Augusta Palmer, and Mary E. Kelly; that on October 7th, 1909, the respondent notified the complainant that he had deducted from the fifteen hundred dollars, so placed in his hands, the unpaid balance of the respondent's bill against the complainant for services, to wit, seven hundred and twenty-five dollars, and that he had paid the remainder, to wit, seven hundred and seventy-five dollars to said Martha J. Magill, Augusta Palmer, and Mary E. Kelly, t'o be applied on account of their legacies; that the complainant has never given permission to
the respondent to use said fifteen hundred dollars in any other manner than for the specific purpose for which the same was placed in the respondent’s hands. The complainant asks this court to make an order requiring the respondent at once to refund to the complainant said sum of fifteen hundred dollars.
This complaint, in accordance with the rules of court, was referred for examination and report to the standing committee on complaints against members of the bar, composed of five members of the bar appointed by the court. The committee on complaints has heard the parties and their witnesses, has made report to the court, and has filed with its report a transcript of the testimony given before it.- The parties have been cited before the court and have been heard in regard to the action to be taken upon said report.'
(1)
It appears by reference to the transcript of testimony that the respondent had been acting as attorney for the complainant for some time prior to September 27th, 1909; that on that day the complainant placed fifteen hundred dollars in the hands of the respondent for the purpose of paying off the three legacies .aforesaid; that it was the expectation of both the complainant .and the respondent that said fifteen hundred dollars would be paid over to the three legatees Within a few days. The respondent did not open a separate account for said money at the bank, but deposited the same in his own bank account; and .notified the three legatees that he had received said money for them. After this deposit the balance of the respondent’s bank account at all times exceeded fifteen hundred dollars up to the time, three days later, when- the complainant, as the respondent claims, directed him to take from said fifteen hundred dollars the amount of his fee for services. In these circumstances we do not think it fairly can be said that the deposit of said fifteen hundred dollars to his private account at bank, amounted to a conversion of the same by the respondent. Within a few days after receiving said fifteen hundred dollars, the respondent became dissatisfied with the complainant’s conduct and notified the complainant that he would no longer act'as complainant’s attorney. The dissatisfaction came about
in the following manner: The complainant as executor of the will of Mary E. Iiolden, before consulting this respondent, had given a bond to the Probate Court to pay debts and legacies. After the engagement of the respondent as his attorney, the complainant represented to the respondent that the estate of Mary E. Plolden was insufficient to pay the legacies and requested the respondent as his attorney to state that fact to the various legatees of Mrs. Holden and to endeavor to induce each of them to accept a sum less than the amount of his or her legacy named in the will and to release the executor. The complainant engaged the respondent to thus deal with the legatees rather than to act for himself as he was not on good terms with his relatives, the legatees, while the respondent was possessed of their confidence. The respondent acted as requested by the complainant and entered into negotiations with the legatees for a release of the complainant upon the payment of less than the full amount of the legacies. The complainant settled with one legatee upon the payment of eighteen hundred dollars upon a two thousand dollar legacy, with three other legatees having five hundred dollar legacies upon the payment of four hundred and fifty dollars each. There is no reason to question the good faith of the respondent in making these representations-to the legatees at the request of the complainant. The respondent testified that at the death of Mrs. Holden, he had supposed that her estate was sufficient to pay the debts and legacies in full. This supposition was based entirely upon his opinion that his aunt was a very conservative woman and would not be likely to make bequests in excess of her property. The respondent, however, had no knowledge of the extent of Mary Holden’s estate, and had no reason to doubt the truth of the complainant’s statement as to the insufficiency of the assets, until the happening of the occurrences which caused the respondent to cease to act as attorney for the complainant. One of the legatees, a Mrs. 'Whitaker, resided in Fall Biver, in the Commonwealth of Massachusetts; the amount of her legacy was two thousand dollars; the respondent was on friendly terms with Mrs. Whitaker and had negotiated with her but was unable to
obtain from her an agreement to accept less than the full amount of her legacy. On Sunday, September 26th, 1909, the complainant himself, without the knowledge of the respondent, went to Fall River and obtained a release from Mrs. Whitaker, in which it was recited that the release was given upon the payment of eighteen hundred dollars. In fact, the complainant paid to Mrs. Whitaker the full amount of the legacy with interest at four per cent, per annum for three years, amounting in all to the sum of twenty-two hundred and forty dollars. In the course of this transaction as reported by Mrs. Whitaker to the respondent, the complainant slandered the respondent by making derogatory statements regarding his character and also-stated to Mrs. Whitaker in the presence of others that the respondent had nothing to do with the estate whatever; that he had never been employed as attorney by the complainant and was not to be considered at all in the settlement of the matter. The complainant requested Mrs. Whitaker to keep secret the facts of the transaction. On the Wednesday following (September 29th, 1909), however, Mrs. Whitaker came to Providence and disclosed to the respondent, and also to the three legatees aforesaid, the details of the transaction between herself and the complainant. The three legatees refused to-accept the fifteen hundred dollars in the respondent's hands in payment of their legacies. In the hearing before the bar committee the complainant admitted that he paid Mrs. Whitaker the sum of twenty-two hundred and forty dollars and took from her a release on its face for eighteen hundred dollars or, as it appears in the transcript of testimony, for nineteen hundred dollars. He refused to state what object he had for doing so. Also he does not deny that he concealed from his counsel the amount that he had paid to Mrs. Whitaker. The complainant, however, denied that he had slandered the respondent in Fall River. The respondent at once, according to his testimony, went to Fall River and verified the statements of Mrs. Whitaker by the affidavits of the witnesses to the transaction of September 26th, between Mrs. Whitaker and the complainant. He became satisfied that Mrs. Whitaker's report was true and, as he claims,
in a state of indignation at the disloyal manner in which he had been treated at once, on September 30th, 1909, the day after the matter was first brought to his attention, wrote a letter to the respondent. As it has been urged that the contents of this letter indicate an improper attempt on the part of the respondent to intimidate and coerce the complainant, it is quoted here in full:
“Providence, R. I., September 30th, 1909.
“Mr. Wilton E. Peirce, Executor of
Mary Holden, late of Providence, deceased,
No. 1S6S Park Avenue, Cranston, Rhode Island.'
“Sir : — In view of what occurred at Fall River, Mass., Sunday, September 26th, A. D. 1909, in connection with a settlement made by you, as Executor of the estate of Mary Holden late of Providence, deceased, with Harriet R. H. Whitaker wife of John W. Whitaker late of Fall River, Mass., deceased, all of which is well known to you, together with the malicious and .slanderous statements made by you at that and other times in regard to me, directly and personal; I hereby notify you that I this day sever my connection with you as counsel to.you in your capacity of Executor of the estate of Mary Holden late of Providence, deceased, after having been employed by you for the past three years.
“ Enclosed you will .find my bill for services, together with the •credit. The balance you will pay immediately, or I shall take proper methods to collect it, I also notify you that I shall hold you responsible in damages for the injury to me resulting from your false, malicious, and slanderous words uttered concerning me.
“The check made by you payable to Harriet R. H. Whitaker for twenty-two hundred forty ($2240) dollars, came into my hands yesterday, September 29th, 1909, with her endorsement. It was afterward endorsed by me and deposited to my credit, as you will see when the check is returned to you. I have paid her the Twenty-two hundred forty ($2240) dollars in cash and have her receipt for it. The legacy paid for by this check from
you was for two thousand ($2,000) dollars, made to John W. Whitaker, the husband of Harriet R. H. Whitaker, and I am informed that the release which you hold in settlement is for nineteen hundred ($1900) dollars. You probably had a reason for using that amount instead of the twenty-two hundred forty ($2240) dollars.
“ However, inasmuch, as you at first represented to me, and I, in your behalf, stated to some of the legatees, that the estate could not pay the legacies in full; and afterwards, when they demanded that the legacies should be paid in full and that you should render an accounting, you then instructed me to inform them that you would pay the full amount of the legacies, providing that they did not insist upon an accounting; you then on Sunday, September 26th, 1909, paid Harriet R. H. Whitaker the sum of Two hundred forty ($240) dollars in addition to the Two thousand ($2,000) dollars which was the amount of the legacy to her husband, John W. Whitaker, I now, as counsel in behalf of Martha J. Magill and Augusta Palmer, both of the town of Cranston in the county of Providence and State of Rhode Island, and Mary E. Kelly, of the City, County and State of New York, make a demand upon you for the interest at six per cent, per annum on their legacies of Five hundred ($500) dollars each for the three years last past. This matter must be settled immediately, or I shall proceed to have a citation issued in the Probate Court of Providence, to compel you to render an accounting.
“
Yours truly,
“ Henry A. Palmer.”
This letter notified the complainant that the respondent would cease to act as his counsel and informed him of the reason; it enclosed a bill for services and demanded immediate payment. It informed the complainant that if said bill was not paid, proper methods would be taken to collect it. It also-notified the complainant that he would be held responsible in damages for the slanderous words uttered concerning the respondent. It also notified the complainant that the respondent had become counsel against the estate for the three legatees.
There can be no impropriety in the notification of this engagement, the propriety of the engagement itself will be considered, later.
In this letter we fail to see the wicked intention of intimidating the complainant that has been urged to us. It does not conclusively indicate an attempt to coerce the complainant. The letter is perfectly consistent with the desire of an angry man to express to the complainant the indignation which the respondent felt towards him. On the following day, October 1st, 1909, the complainant came to the respondent’s office and an interview was held between them. The respondent claims that in the course of this interview the complainant agreed to the amount of the respondent’s bill for services, terminated the trust under which the respondent held the sum of fifteen hundred dollars, directed the respondent to apply a sufficient portion of said sum to the payment of the respondent’s bill for services and to pay the balance to the three legatees and promised to bring to the respondent enough money to pay the three legacies in full with interest for three years. In regard to this interview and the settlementwhich the respondent claims was made at that time it is urged that by intimidation, oppression, and threats of a suit for slander the respondent forced the complainant to submit to his terms. Unless the circumstances of the interview clearly and conclusively establish such oppression the court should not so find in this extraordinary proceeding which looks to a summary order, and concludes the rights of the respondent without the ordinary procedure in legal controversies between citizens. If it is clear that the agreement was forced from the complainant it should not be allowed to stand, but if we must reach the conclusion upon conjecture alone, then this matter, as other issues between the parties, should be left for determination to ordinary legal proceedings. The complainant himself does not claim that he was intimidated at this meeting, for he denies that any such agreement was made. It does not appear that the respondent sought the interview, but that the complainant, after receiving the letter of the day before, of his own motion, came to thé
respondent’s office and desired a conference for the purpose of making a settlement. It is admitted by the complainant that the respondent refused to talk with him alone and that when a witness was called in the respondent warned the complainant that whatever he said might be used against him. The complainant does not contradict the respondent’s testimony that early in the interview he told the complainant that he preferred to talk with an attorney rather than with the complainant himself. It is plain from the testimony that the respondent was angry with the complainant and told him very freely and forcibly what he thought of his, the complainant’s, conduct. It is also clear that, in reply to the complainant’s inquiry as to terms of settlement, the respondent repeated the statements of his letter, demanded the payment of his bill for services in full and the payment of the legacies of the three legatees, with interest, and reiterated that he intended to sue the complainant for his slanderous words. It is also clear that he absolutely refused to compromise these matters with the complainant, that he did not seek to prolong the interview or to obtain a settlement, that he did not threaten to bring the suit for slander unless his claim for services was paid, but so far from using that possible suit as a means of obtaining a settlement of his bill he repeatedly stated that even if his claim for services was paid in full, he should still bring the suit in slander. In these circumstances it does not appear that a termination of the trust and a direction to pay the respondent’s bill was forced from the complainant by intimidation, and was not his voluntary action, in accordance with what he, at that time, considered to be just, unless a construction unfavorable to his good faith is to be placed upon every act and word of the respondent. An examination of the testimony of the complainant indicates that he was of ordinary intelligence and education. lie was a cousin of the respondent and had been intimately acquainted with him for years. He was present before the court in chambers and appeared to be a strong man in the prime of life; there is nothing to suggest that he is a person susceptible to intimidation or coercion. As yet there has been no determination of the reasonableness of the
respondent’s claim for services. That matter must be left, in the first instance, to another tribunal. As yet we are not justified in assuming that in obtaining a direction for the payment of his bill the respondent was receiving any advantage from the complainant, or more than his due. At the time of this interview the relation of attorney and client had ceased between these parties and a reading of the testimony clearly shows that no confidential relation existed between them or any relation of good will which gave to the respondent an influence over the actions of the complainant. Surely this respondent should not be charged at the same time with obtaining the direction for the payment of his claim by intimidation and threats and also by the exercise of the subtle influences which arise from the relations of confidence and good-will existing between the parties as attorney and client. The close scrutiny which the law makes of the transaction between counsel and client does not lead to a presumption of unfairness on the part of the attorney when he obtains the voluntary payment of a just claim for professional services.
In support of his testimony, the respondent introduced that ■of Miss Bessie Tennant, a stenographer employed in a neighboring office, who was called in as a witness to the interview. Miss Tennant testified that the complainant said that the respondent’s bill “was perfectly all right,” and that he was willing to settle the bill, that the complainant afid respondent then went out into the hall-way and continued the conversation there, that she was going into her own office “ and stopped a minute.” In her testimony before the committtee, she can not remember distinctly whether at that time in the hall-way she heard the complainant tell the respondent to deduct his bill from the amount of money in his hands or whether the respondent came into her office and told her so, but she remembers that she heard it on that day. ' Later Miss Tennant wrote a letter to the committee in which she says that she has thought the matter over carefully and states: “After Judge Palmer had told Mr. Peirce that he was through with him, I left Judge Palmer’s office and came into Mr. Gardner’s office. Judge
Palmer came in with me as far as the inner door and then went out. He met Mr. Peirce in the hall again, and when I heard them talking I went out. I then heard Mr. Peirce say to Judge Palmer: 'You take your bill out, and I will bring in the balance Tuesday.’ ” The committee did not reopen their hearings, and though they attached this letter to their report, the complainant had no opportunity to cross-examine Miss Tennant upon the matter contained in the letter and we shall not consider this letter as a part of the case or as having any bearing upon its determination.
Against this testimony of the respondent and his witness is that of the complainant alone. He admits that an interview took place between himself and the respondent on October 1st, 1909, and that the respondent’s witness was called in, but denies that he directed the application of any portion of the fifteen hundred dollars to the payment of the respondent’s bill, or that he approved of the amount of the respondent’s claim for services.
The respondent has been a member of this bar for a number of years; so far as it has been brought to the attention of this court, his ^practice has been without complaint or adverse criticism. His conduct before the court has always been marked by apparent truthfulness and good faith. On two occasions the respondent has appeared before the court and has been examined very thoroughly by members of the court in regard to matters relating to this transaction and his bearing. has been frank and honest throughout. Miss Tennant appears to have been careful in her statements before the committee and to be entitled to credence as to those matters of which she has testified positively. Without placing any discredit upon the complainant the court must say that from the testimony given before the committee it can not be considered as established that the respondent holds the seven hundred and twenty-five dollars remaining in his hands for the specific purpose for which it was originally placed there. With the matter in that condition, this court, following its former decisions, will not exercise its summary jurisdiction but will leave the complainant
to pursue his ordinary remedy at law. This opinion is not intended in any way to be a reflection upon the action or the judgment of the committee on complaints, the members of which committee appear to have very carefully conducted their examination and made their report, but this is in accordance with the determination of this court, frequently expressed in the past, and is for the protection of the legal rights of the respondent.
This court has held that it will in a proper case make a. summary order against a member of the bar, but it will do this only when it can not reasonably be disputed that there has been misconduct on the part of the attorney. The court said in
Orr
v.
Tanner,
12 R. I. 94: “ Some of the facts alleged by the complainant are denied by the respondent, but we think the_ undisputed facts in this case are sufficient to justify and require us to make an order against the respondent.”
In
Burns
v.
Allen,
15 R. I. 32, in considering the question of the interference of the court between attorney and client, the court said, in regard to the nature and extent of such interference: “It does not undertake primarily to settle the rights and credits of the parties, but only to require that its officers do not make illegal exactions nor deny to clients their indisputable rights. A jury is the tribunal to settle what is fairly due to the parties under their contract. Except incidentally, the court does not touch that matter in a proceeding like this, but simply acts with reference to an excess so apparent as to amount to misconduct.” And in making its order in that case, the court said: “Under the circumstances, we think that thirty per cent, of the judgment is, certainly, as much as could be claimed, for all services that the respondent had the right tO' charge for, and that he should pay over all that he holds above that limit.” In that case the court held as a matter' of law that the respondent had misconceived the persons against whom he should make charge for certain professional services performed by him. The respondent had charged all these services to the complainant and had held a certain judgment, obtained for the complainant, in payment for all these services which
had been rendered largely for persons other than the complainant. The court did not assume to determiné what would be proper compensation for the services rendered to the complainant, but found that thirty per cent, of the judgment would surely cover the amount and left the parties to their ordinary remedies as to the exact amount of compensation. The remaining seventy per cent., which was held by the respondent through a mistake of law, was ordered paid over as clearly held improperly.
In
Windsor
v.
Brown,
15 R. I. 182, the court said: “When an officer of the court withholds funds unconscionably, or to an amount clearly above any legal claim, the court, not undertaking to settle the exact sum that may be due but to enforce good faith and fair dealing, will require its officer to pay so much as is beyond dispute.”
(2)
no case does it appear that the court has exercised this jurisdiction except as to matters about which there was no reasonable dispute. The transcript of testimony taken before the committee shows that while the respondent was acting as attorney for the complainant money was placed by the complainant in the respondent’s hands for a specific purpose. He could not apply it to any other purpose without the leave of the complainant. If no such permission or direction was given by the complainant, the respondent’s duty was clear. If he failed in that duty the court without hesitation would exercise its authority and order him to apply the money in accordance with the trust. The respondent claims, however, that the trust was terminated and that he was directed by the complainant to make other application of the money, which he has done. In our opinion the testimony substantially supports the respondent’s claim. In any view there is presented a reasonable dispute, and as to this disputed question the lawyer stands as does any other citizen and his rights should not be concluded by a summary order against him.
The complaints which are most frequently presented to the court by clients, asking that orders be made against attorneys directing them to pay over money in their hands, are in
cases where the attorney has retained money collected for the client, where the attorney has taken it as payment of his professional fee, or for some other reason has refused to pay it over to the client. But the principles which govern the action of the court in those cases are equally applicable to any case where a summary order is sought.' They arise from the nature of the-proceeding. The court, in the exercise of its control over attorneys, will not suffer a manifest injustice on the part of such officers to go uncorrected, and at once, in such a case, without requiring the injured party to resort to the ordinary procedure of the courts, this court will direct its officers to-take such action or to make such payment as justice plainly requires. It makes no difference whether the money has been collected by the attorney for the benefit of the client or whether, as in this case, it has been placed in the hands of the attorney by the client for a specific purpose. If it is beyond reasonable question that there has been misconduct on the part of the attorney in retaining the money the court will promptly make an order for its payment. But, alike in all cases, for the client to be given this extraordinary relief it must be clear that there has been an injustice done to him. In all cases the client has relief in the ordinary tribunals for the determination of legal controversies, and when his right to have a summary order can be reasonably questioned he must be referred to these ordinary remedies, whatever be the nature of the controversy.
(3)
As some uncertainty exists as to the'nature of the investigation of the committee upon complaints and as to the scope of its authority, it is advisable that its jurisdiction should be more particularly defined than it has been in the rules of court. The committee on complaints is simply a body which this court has created to assist it in the investigation of complaints against members of the bar. The court can not delegate any of its own powers to this committee. The court cannot empower this committee to compel the attendance before it of parties or witnesses; and the court can not empower this committee to administer a binding oath to those who do appear before it. Even with its restricted authority, however, the committee, in
the practical operation of the plan, has been of the greatest assistance to the court through the investigation which it has made of complaints, and by the reports which it has rendered to the court. Complainants, who desire to press their complaints, naturally have appeared before the committee and produced their testimony; respondents have availed themselves of the opportunity to appear before a committee of their fellow practitioners and answer the charges which have been made concerning their professional conduct, and by the reports of this ■committee of members of the bar of high standing the court has been greatly aided in deciding whether to take action upon ■charges preferred or to leave the complainants to their ordinary remedy at law. But the report of this committee can never be used as the basis of an order against an attorney either for the payment of money or for his discipline. Its only proper use is as the report of a preliminary investigation made to determine if the matter calls for a hearing before the court. The power to discipline members of the bar lies in the court alone, and when the court is to exercise the extraordinary power of summary proceeding against a member of the bar there should not be a master, or committee, or other tribunal standing between the court and the parties and witnesses. A summary ■order should be made with the greatest caution, and only after the parties and the witnesses have appeared and given their sworn testimony before the court itself.
In this proceeding the complainant and the respondent stand in altogether different positions. The complainant, if it clearly appeared that he is entitled to relief, would be granted .an order in his favor; if his right is not manifest, his complaint is dismissed, but entirely without prejudice to his right to prosecute his claim in the ordinary way as he must in his disputes with others not members of the bar. He is deprived of no legal right, all rights of trial given to others are preserved to him. The court "has simply refused to give him an order against ■one of its officers, an order which it will only grant, when in the ■exercise of its discretion the case clearly appears to require it. - In regard to the respondent, however, if an order is made against
him, it is a final determination of his rights. Hence, the court will grant such an order with the greatest caution.
In this case, upon the coming in of the committee’s report, both parties were cited before the court. At the hearing the complainant and his attorney were given an opportunity to be heard as to the action which should be taken by the court., If the complainant had desired to present further testimony or to further examine the respondent, he surely would have been permitted to do so by the court. The complainant gave the court to understand that he desired to submit his case upon the report of the committee and the testimony presented before the committee. The complainant has never suggested to the court, and the court has no reason to believe, that his testimony before the court would be more favorable to him than his statement made before the committee. The court ordered a second hearing before it for the further consideration of the conduct of the respondent in the premises, and notice of said hearing was given to the attorney for the complainant and a copy of the specifications of misconduct upon which the respondent was to be heard was given to said complainant’s attorney, .and the complainant would have been permitted to take part in said hearing if he had desired to do so.
In the complaint before it, the majority of the court is of the opinion, as a result of the preliminary investigation by the committee, that the complainant should be remanded to his ordinary remedy and that the complaint should be dismissed without prejudice; and it is so ordered.
(4)
There remains to be considered that portion of the report of the committee upon complaints in which the attention of the court is called to the conduct of the respondent in undertaking to act as counsel for Martha J. Magill, Augusta Palmer, and Mary E. Kelly, legatees under the will of Mary E. Holden, and against the complainant as executor of said will. The respondent was not justified in thus acting as counsel against the complainant in the same general matter in which he had before been engaged in behalf of the complainant; as, however, the • slightest word of public censure from the court may be very
injurious to the reputation and to the future professional career of the respondent, our disapprobation of his conduct should be accompanied with a statement of the circumstances in which he accepted this engagement against his former client, as those circumstances appeared in testimony at a hearing before the court. This complainant, the respondent and the three legatees named are cousins, and the late Mary E. Holden, was an aunt of each of them. Each of the said three legatees are widows. The relation between these ladies and the respondent had always been intimate and friendly, and the respondent’s position as counsel for the complainant appears never to have been regarded as one adverse to the interests of said legatees.
The respondent has testified that the report of Mrs. Whitaker as to the transaction, which took place between herself and the complainant, had enraged him against the complainant. Whether rightly or wrongly, the three legatees and the respondent, as a result of Mrs. Whitaker’s report, thought that the complainant had deceived them and the respondent considered that he had been used as a tool to deceive those who placed confidence in him. In these circumstances, and on their solicitation, the respondent took up the cause of his three cousins for the purpose of compelling the complainant to pay the full amount of their legacies, with interest, which they then became convinced the estate was sufficient to enable him to do. The impulse which led the respondent to take the claims of his three widowed cousins against the complainant was perhaps a natural one, although the engagement was one which the law will not permit.
The respondent acted openly; there was no attempt on his part secretly, and for his own advantage, to aid the adversaries of his former client; he was not trafficking in his former client’s interests or using against the complainant any confidence which had been disclosed by him or any knowledge which the respondent had gained while acting as attorney for the complainant. For as such attorney he had gained no knowledge as to the condition of the Holden estate which would assist him in prosecuting the claims of his three cousins against said estate.
Any knowledge as to the condition of the estate and its ability to pay the legacies with interest was not gained by the respondent as attorney for the complainant but was acquired by the respondent and the three legatees from the disclosure of Mrs. Whitaker. It was not acquired confidentially from the former client, but contrary ^o that client’s intention. The respondent, by reason of his former relations with the complainant, was no better prepared to prosecute these claims against the complainant than was any other attorney at the bar. But nevertheless he had acted as attorney for the complainant in the settlement of this estate. The rule as to the conduct of attorneys in this regard knows no exception; the respondent had acted as attorney for the complainant in this matter and he can not be permitted now to place himself in a position hostile to his former client. We would insist upon the strictest compliance with the rule requiring loyalty on the part of an attorney to the interests of his client. The relation of attorney and client in this respect has been fully considered in the case,
In re Boone,
83 Fed. Rep. 944. In that case the court said, at page 952:
“
Of course, it is conceded that an attorney may represent his client’s adversary with perfect propriety whenever their interests are not hostile to each other. The test of inconsistency is not whether the attorney has ever appeared for the party against whom he now proposes to appear, but it is whether his accepting the new retainer will require him, in forwarding the interests of his new-client, to do anything -which will injuriously affect his former client in any matter in which he formerly represented him, and also whether he will be called upon, in his new relation, to use against his former client any knowledge or information acquired through their former connection.
Price
v.
Railroad Co.,
18 Ind. 137;
Bent v. Priest,
10 Mo. App. 543. An attorney can' not use the knowledge acquired confidentially from his client in trafficking with his client’s interests.
Hatch
v.
Fogerty,
40 How. Prac. 492. This general and well-settled rule is not found in any positive enactment. Indeed, none is necessary; it springs from the very nature and necessities of the relation of attorney, and client, and finds its highest sanction in the confidential char
acter of that relation. No rule in the ethics of the legal profession is better established nor more rigorously enforced than this one. The relation of attorney and client is one of mutual trust, confidence, and good will.
Arrington
v.
Sneed,
18 Tex. 135. The attorney must use all the care, skill, and diligence at his command on behalf of his client. The relation being, in the highest degree, a confidential one, he is bound to the strictest secrecy and the most scrupulous good faith. He is not allowed to divulge information and secrets imparted to him by his client or acquired during their professional relation, except, perhaps, in very rare circumstances, or when authorized to do so by the client himself. This is the privilege of the client, and not of the attorney, and, unless the client sees fit to waive his privilege, the obligation solemnly rests upon the attorney to keep his lips forever sealed, and to preserve inviolate the confidence reposed in him. The relation may terminate, but the obligation nevertheless continues.”
In
U. S.
v.
Costen,
38 Fed. 24, Mr. Justice Brewer, then circuit judge, said: “It is the glory of our profession that its fidelity to its client can be depended ,on; that a man may safely go to a lawyer and converse with him upon his rights, or supposed rights, in any litigation, with the absolute assurance that that lawyer’s tongue is tied from ever disclosing it; and any lawyer who proves false to such an obligation, and betrays, or seeks to betray, any information or any facts that he has attained while employed on the one side, is guilty of the grossest breach of trust. I can tolerate a great many things that a lawyer may do, — things that, in and of themselves, may perhaps be criticised or condemned, — when done in obedience to the interest or supposed interest of his own client, and when he is seeking simply to protect and uphold those interests. If he goes beyond, perhaps, the limits of propriety, I can tolerate and pass that by; but I cannot tolerate for a moment, neither can the profession, neither can the community, any disloyalty on the part of a lawyer to his client. In all things he must be true to that trust, or, failing it, he must leave the profession.”
In
U. S.
v.
Costen, supra,
the respondent, after acting as
•counsel for certain litigants, ceased to so act and then secretly •sought to sell his knowledge of important facts, acquired during his employment, to the other side. In
re Boone, supra,
the respondent had appeared for a client for at least seven years in long, continuous, and arduous litigation involving a large number of suits at law and equity, affecting the validity of •certain inventions and patents belonging to his client. He then withdrew and sought to be employed by the other side, .and urged as a ground for employment that he was possessed of knowledge that would be important to the litigation which he had gained during his connection with the litigation acting for his former clients. In each of these cases the respective re•spondents were disbarred. We approve the doctrine in the two cases cited, but we can readily distinguish the facts of those ■cases from the facts of the case at bar, and we can discriminate between the action which this court should take in regard to this respondent and the penalty which was so reasonably imposed upon the respondents in those cases. This respondent was led by his'indignation, and his desire to prevent what he •considered the perpetration of a wrong against these women, to assume a position which the law and the rules of his profession ■do not permit him to occupy and from which he must withdraw.
Our order is, that the respondent at once cease to act as .attorney against the complainant as executor of the will of Mary E. Holden, in any manner, either directly or indirectly, and that in any proceeding against said complainant as said ■executor which may be pending in any court and in which the respondent appears as attorney, he at once withdraw his appearance as such attorney.
Johnson and Parkhurst, JJ., concur.