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CHAPTER 11- AUTHORITY OF ATTORNEY

POWER TO BIND CLIENT

Generally, a lawyer must perform his duties to his client within the scope of his
authority. The extent of his authority is defined by what is expected of him as provided by
law and the rules of court and/or by the written authority granted him by his client.

ATTORNEY AS AGENT OF CLIENT


The relation of attorney and client is in many respects one of agency and the general
rules of ordinary agency apply to such relation. As the attorney is an agent of the client, the
latter is, in accordance with the rules of agency, bound by the act or omission of its attorney
within the scope of its authority. An attorney representing a client in court is however more
than an agent and has powers different from and superior to those of an ordinary agent, he
being an officer of the court with rights, privileges and duties peculiar only to a lawyer.

COLLECTION OF CLAIMS
An attorney retained by a creditor to enforce a claim has the authority to take all
steps necessary to collect it, such as sending a letter of demand requiring payment of the
obligation within a specified period or filing the corresponding action in court in the event of
the debtor’s refusal to pay. He has also the authority to release the debtor from his
obligation upon full payment thereof in cash and to issue a receipt thereof. However, an
attorney cannot, without special authority discharge his client’s claim for less than the
amount thereof or for the full amount in kind, nor can he, without special authority, encash
or endorse a check or draft payable to his client or deliver the proceeds of a claim to a
person other than to his client or to his client’s authorized agent.

ACCEPTANCE OF SERVICE OF SUMMONS


Ordinarily, an attorney has no power to receive or accept on behalf of his client the
service of summons in his bare professional capacity. An attorney may, however, be
regarded as an agent upon whom service of summons intended for his corporate client may
be made and binding on the latter, where there are circumstances showing that he has been
conferred or is exercising additional power than what is implied from the professional
employment.

DELEGATION OF AUTHORITY
Since the relation of attorney and 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.

DELEGATION OF LEGAL WORK


A lawyer has the implied power to delegate to his associate or assistant attorney,
under his supervision and responsibility, part or the whole of the legal work required to be
performed in the prosecution or defense of the client’s cause. The client may not therefore
be held liable for the fees of the associate counsel hired by the client’s lawyer in the
absence of an agreement to that effect. However, a lawyer may not delegate to a layman
any work which involves a study of the law or its application, where these matters involve
the practice of law which may be undertaken only by a lawyer.

AUTHORITY TO APPEAR
An attorney may not, without being retained or authorized by the court, represent
another in court. His authority to appear for a client commences only from the time he is
retained by the client or by the latter’s agent. No written authority from the client is
necessary to enable a lawyer to represent him in court. His appearance in whatever form is
an assertion that he has been duly authorized to prosecute or defend the client’s cause,
however, the orderly conduct of judicial proceedings, requires that a counsel for a party
should file with the court his formal written appearance in the case.

The authority of an attorney to appear in a case, maybe challenged by the party


adversely affected by the attorney’s representation.

EFFECTS OF UNAUTHORIZED APPEARANCE


A party who has not authorized an attorney to represent him is not bound by the
attorney’s appearance in the case nor by the judgment rendered therein. The unauthorized
appearance of counsel for a plaintiff or a defendant who has not been served with
summons, as the case maybe, confers upon the court no jurisdiction over the person of
either party. And the adverse party who has been forced to litigate as a defendant by the
unauthorized action on the part of the attorney for the plaintiff may, on that ground, move
for the dismissal of the complaint.

RATIFICATION OF UNAUTHORIZED APPEARANCE


The unauthorized appearance of an attorney in a case, may be ratified by the party
concerned either expressly or impliedly. Ratification retroacts to the date of the attorney’s
first appearance and validates the action taken by him. There is implied ratification where a
party, with knowledge of the fact that an attorney has been representing him in a case,
accepts the benefit of the representation or fails to promptly repudiate the assumed
authority.

CONDUCT OF LITIGATION

The cause of action, the claim or demand sued upon and the subject matter of the
litigation are within the exclusive control of the client; and an attorney may not impair,
compromise, settle, surrender or destroy them without the client’s consent. Generally, a
client may waive, surrender, dismiss or compromise any of his rights involved in a litigation
in favor of the other party even without or against the consent of his attorney.

DETERMINATION OF PROCEDURAL QUESTIONS


A lawyer who has been retained to prosecute or defend an action has the implied
authority to determine what procedural steps to take which, in his judgment, will best serve
the interest of his client.

MAKING ADMISSIONS
Generally, the authority of an attorney to make admissions is limited to the action in
which he is retained; consequently, admissions made by him on behalf of a client in one
case are not binding upon the same client in another suit, except when the attorney has
been expressly authorized to make the admission or the subsequent litigation is related to
the previous controversy.

ENTERING INTO STIPULATIONS


A lawyer has the general or implied authority to agree or stipulate upon the facts
involved in a litigation even without the prior knowledge or consent of his client. His
signature in a stipulation is an admission of the truth of all the facts therein stated, including
the changes made thereon. In criminal cases, stipulations or admissions during pre-trial
conference, to be admissible against the accused, must be reduced to writing and signed by
the accused and his counsel.
AGREEMENT AS TO WHAT WITNESS WOULD TESTIFY
A lawyer may stipulate only as to facts but not as to the manner the facts are to be
offered.

COMPROMISE OF CAUSE OF ACTION


It is well settled that an attorney has no authority to compromise his client’s cause
without the client’s consent. He may not, unless expressly authorized, settle the action or
subject matter of the litigation even though he honestly believes that a settlement will best
serve the client’s interest.

EFFECT OF WANT OF SPECIAL AUTHORITY


A compromise entered into by the client’s attorney without having been authorized
to do so by the client has been invariably described as null and void ab initio or
unenforceable.

RATIFICATION OF UNAUTHORIZED COMPROMISE


A client may ratify an unauthorized compromise entered into by his counsel either
expressly or tacitly. Ratification cleanses the compromise agreement of all its defects from
the moment it was constituted, and the client who becomes bound thereby cannot
thereafter disown it.

CONFESSION OF JUDGMENT
A confession of judgment stands on the same footing as a compromise agreement.
Hence, a lawyer may not confess judgment against his client except with the knowledge and
at the instance of the client. Nor may he, without being authorized, agree that a judgment
be rendered against his client for a sum of money payable at an extended period even
though he honestly believes that what he did best serves the client’s interest.

DISMISSAL OF ACTION OR WITHDRAWAL OF APPEAL


A lawyer has no authority to dismiss his client’s case with prejudice even if he does
not believe that his client is entitled to prevail in the action. Thus a lawyer may properly ask
that his client’s action be dismissed without prejudice when, by reason of the client’s
repeated failure to appear at the hearing or to give him the necessary evidence, he cannot
proceed with the trial of the case.

A lawyer has no implied authority to waive his client’s right to appeal nor to
withdraw a pending appeal.

AUTHORITY AFTER JUDGMENT


As counsel of record in the trial court, he is presumed to continue representing his
client in the appellate court with the power to bind his client on any procedural matter
affecting the appeal. For that reason, a client is bound by the adverse judgment rendered on
appeal taken by his counsel even though he had not authorized his lawyer to take the
appeal.

MATTERS IMPUTED TO CLIENT

KNOWLEDGE ACQUIRED BY ATTORNEY


The knowledge acquired by an attorney during the time that he is acting within the
scope of his authority is imputed to the client. The doctrine of imputed knowledge is based
on the assumption that an attorney, who has notice of matters affecting his client, has
communicated the same to his principal in the course of professional dealings.
NOTICE TO COUNSEL AS NOTICE TO CLIENT
The law requires that service of any written notice upon a party who has appeared
by attorney or attorneys shall be made upon his attorney or one of them, unless service
upon the party himself is ordered by the court. Hence, a notice to counsel is a notice to and
is binding upon the client. And a notice sent to a party who has appeared by counsel is not
notice in law, it being immaterial that the client actually received the notice or volunteered
to get a copy thereof.

NOTICE TO ONE AS NOTICE TO ANOTHER COUNSEL


When a party is represented by two or more lawyers, notice to one suffices as notice
to the party represented by him.

EXCEPTIONS:
1- Is that situation where either by agreement or proper manifestation, one of the
attorneys is expressly designated as one to whom service is to be made.
2- Is that instance where it is admittedly clear or obvious that one is a leading
counsel and the rest mere helpers, as when the adverse party and the court
itself consider one of the lawyers as the principal counsel.

MODE OF SERVICE OF NOTICE


Service of pleadings, motions, notices, orders, judgments and other papers shall be
made either personally or by mail. Personal service is complete upon actual delivery. Service
by ordinary mail is complete upon the expiration of ten (10) days after mailing, unless the
court otherwise provides. Service by registered mail is complete upon actual receipt by the
addressee, or after five (5) days from the date he received the first notice of the postmaster,
whichever date is earlier.

PERSONAL SERVICE PREFERRED; EXPLANATION REQUIRED


Whenever practicable, the service and filing of pleadings and other papers shall be
done personally except with respect to papers emanating from the court, a resort to other
modes must be accompanied by a written explanation why the service or filing was not
done personally.

MISTAKE OR NEGLIGENCE OF COUNSEL BINDING UPON CLIENT


The general rule that the negligence of counsel binds the client is based on the principle
that any act performed by a lawyer within the scope of his general or implied authority is
regarded as an act of his client. In other words, a client may lose a litigation in favor of the
adverse party by reason of the attorney’s failure to take the required step to protect the
client’s interest or of the lawyer’s error in judgment as to what is best for his client.

EXCEPTIONS:
The court may except cases from the rule where adherence thereto will result in
outright deprivation of the client’s liberty or property or where the interests of
justice so require, and accord relief to the client who suffered by reason of the
lawyer’ gross or palpable mistake or negligence or where the error committed by
counsel is purely technical in nature which does not affect substantially the client’s
cause.

Reporter: MAMONIE M. NATANGCOP