Chapter 11 - Authority Of Attorney Flashcards
What is the general rule of the power of the attorney to bind his client? What are the two kinds of authorities of the former?
Generally, a lawyer must perform his duties to his client within the scope of his authority.
These two authorities are the following:
(1) General or implied authority which is what is expected of the lawyer as provided by law and the Rules of Court, such as procedural matters. In this authority, the act of the attorney is considered as act of the client, which means that it binds the client.
(2) Substantial authority is the written authority granted by the client to the lawyer. It generally refers to causes of action, and does not bind the client to substantial matters.
What is a service of summons? Can a lawyer have the power to receive or accept on behalf of his client the service of summons in his bare professional capacity?
A service of summons is the summon of the court to compel the parties to appear in court.
Ordinarily, an attorney has no power to receive or accept on behalf of his client the service of summons in his bare professional capacity.
Can a lawyer delegate his authority and legal work to another lawyer?
Since the relation between an attorney and a client is one of utmost trust, an attorney may not without the client’s consent, express or implied, delegate the confidence and the authority that goes with it to another lawyer.
A lawyer must not also delegate the legal work involved in the case, unless the client consented to it. The exception to this rule is that a lawyer may authorize another lawyer on his behalf to appear in court in the absence of an express agreement with the client to the contrary, but the acting lawyer is presumed to be empowered to act in such capacity.
When does the authority of the lawyer ends?
The authority of a lawyer ends upon the termination of the case, or the lawyer withdraws from the case.
What is appearance?
What is the formal method of entering an appearance by a lawyer?
Appearance is the coming into court as a party either as a plaintiff or as a defendant and asking relief therefrom.
The formal method of entering an appearance by a lawyer is the following:
(1) File with the court a pleading with the signature of the client conforming to the pleading
(2) Asking the clerk of court to enter his name as counsel for a party
(3) Requesting that copies of orders, processes, decision, and pleadings be sent to him at the address indicated
(4) Copy of his appearance to be furnished to the adverse party
What is the difference between a general and special appearance?
A general appearance is a voluntary appearance that recognizes the case in court and its jurisdiction over the court.
A special appearance is an appearance before the court to question the jurisdiction of the court, and this does not operate as a voluntary appearance.
What is the rule on the presumption of authority of a lawyer?
The rule is that a lawyer is presumed to be properly authorized to represent in any cause in which he appears in all stages of the litigation and and no written authority is required to authorize him to appear.
Who will represent the client on appeal?
What if a different lawyer perfects the appeal?
The rule is that a lawyer who appears as counsel de parte in a case before a lower court is presumed to continue representing the client on appeal.
In the absence of (1) a withdrawal of appearance, (2) notification to the contrary, or (3) proper substitution of counsel, the two lawyers are considered as counsel of record on appeal. However, this does not apply to attorneys who are in special appearance.
Can the authority of the lawyer be disputed?
Who can challenge the authority?
Yes, the authority of an attorney to represent a case can be disputed, and may be overcome by clear evidence to the contrary.
This can be challenged by the client, and also by the judge, to which the lawyer must produce or prove his authority. But such challenge must be seasonably presented, or at brought up at the earliest time possible.
If the appearance of the lawyer is unauthorized, what is the rule?
Generally, a lawyer is not authorized to represent a client without retainer. However, if the client expressly or impliedly ratifies the authority of the lawyer, then the client accepts the representation of the client.
What are the requisites of implied ratification?
First, the party represented by the attorney must have legal capacity (age and competent), and if the party is suffering from any disability, he is represented by a guardian.
Second, the party or his guardian is aware of the representation by the attorney.
Third, the party or his guardian fails to repudiate the unauthorized authority of the attorney.
What are the rules on the substantial matters of the case?
The substantial matters of the case, such as the cause of action, the claim or demand sued upon, and the subject matter of the case is only within the control of the client, and the lawyer cannot do anything to impair, compromise, or destroy them without the client’s consent.
The client can waive, surrender, or dismiss these substantial matters even without the consent of the lawyer.
Who can determine procedural questions?
The lawyer has the implied authority to determine what actual steps to take which, in his judgement, will best serve the interest of the client.
What are some of the functions that the lawyer can do under his general or implied authority?
(1) Making admissions of facts for the purpose of the litigation, but only on procedural matters.
(2) Agree or stipulate upon the facts involved in the litigation even without the prior knowledge or consent of his client.
What are the limitations to the client’s rights?
A client’s right is not absolute. It must not:
(1) Defeat the attorney’s right to just compensation for his services, if the action is in bad faith, or for a reasonable sum based on quantum meruit.
(2) Cannot be exercised in a manner that is contrary to law, public customs, good morals, public order or public policy.
(3) cannot be exercised in a way that will compromise a third person’s right recognized by law.
(4) Cannot withdraw an appeal or petition when the issues have already been submitted for resolution.
