Attorneys have authority to bind their clients in any action or proceeding by any agreement in relation to the cause, made in writing, and by signing judgments, entering appeals, and entering such matters, when permissible, on the dockets of the court. Attorneys who are otherwise authorized by law to take affidavits and administer oaths shall not be disqualified to take affidavits required of their clients in any matter or proceeding of any nature whatsoever.
(Orig. Code 1863, § 382; Code 1868, § 443; Code 1873, § 408; Code 1882, § 408; Civil Code 1895, § 4417; Civil Code 1910, § 4955; Code 1933, § 9-605; Ga. L. 1957, p. 495, § 1.)
Law reviews.- For article surveying the law in Georgia on admissions, see 8 Mercer L. Rev. 252 (1957). For survey article on legal ethics, see 34 Mercer L. Rev. 197 (1982). For article on the law concerning settlements negotiated by attorneys, see 29 Ga. St. B.J. 10 (1992). For article on the law concerning settlements negotiated by attorneys, see 29 Ga. St. B.J. 10 (1992).
JUDICIAL DECISIONSANALYSIS
General Consideration
Code section is codification of existing rule.
- This section did not originate from legislative enactment, but was a codification of the rule previously existing and arising from the decisions of courts. Evans v. Brooke, 182 Ga. 197, 184 S.E. 800 (1936).
This section does not confer upon attorneys any new authority, but states preexisting general rule derived from the sources to which the codifiers were authorized to look. Evans v. Brooke, 182 Ga. 197, 184 S.E. 800 (1936).
Estoppel.
- This section is subject to the doctrine of estoppel. General Communications Serv., Inc. v. Georgia Pub. Serv. Comm'n, 244 Ga. 855, 262 S.E.2d 96 (1979).
Attorney's authority is plenary absent express restrictions.
- Absent express restrictions upon attorney's authority, it may be termed plenary insofar as the court and the opposing parties are concerned. Davis v. Davis, 245 Ga. 233, 264 S.E.2d 177 (1980); Glazer v. J.C. Bradford & Co., 616 F.2d 167 (5th Cir. 1980).
Attorney as party's agent.
- Attorney of record is party's agent in prosecution of legal action, and the attorney's authority is determined by the terms of the attorney's contract of employment and the instructions given by the attorney's client. Davis v. Davis, 245 Ga. 233, 264 S.E.2d 177 (1980); Glazer v. J.C. Bradford & Co., 616 F.2d 167 (5th Cir. 1980).
Whatever counsel assents to, client assents to.
- If party comes into court competent to select counsel and does select counsel, the counsel is there for the purpose of representing the client, and whatever the counsel assents to, the client assents to; there is full power on the part of the counsel to represent the client, and it is just the same as if the client were there in person. Abney v. State, 47 Ga. App. 40, 169 S.E. 539 (1933).
Client bound by counsel's agreement.
- If plaintiff's attorney wrote a letter to defendant's liability insurance carrier stating that certain entities would not be sued in consideration of the carrier's making an investigator available for interview and the plaintiffs received the benefits of the agreement by interviewing the investigator, plaintiffs were estopped from denying the authority of the attorney to make the agreement. White v. Orr Leasing, Inc., 210 Ga. App. 599, 436 S.E.2d 693 (1993).
Counsel's agreement to dismiss case without client's knowledge.
- Agreement by and consent of counsel of record to dismiss a pending case is binding upon the client even though the client may not have known of the attorney's consent or agreement and did not assent thereto. Wilson v. N.E. Isaacson of Ga., Inc., 139 Ga. App. 582, 229 S.E.2d 29 (1976).
Settlement agreed on prior to trial enforced by court.
- If, while still appearing as attorney of record for plaintiff, attorney by letter authorizes or directs the clerk of the court in which an action is pending to dismiss the case upon payment of costs by the defendants therein, and the case is dismissed pursuant to such letter, plaintiff, in the absence of any fraud or any showing that the court, the clerk, or the opposite parties or their attorneys were cognizant of the attorney's discharge or withdrawal, is bound by the act of the attorney in dismissing the case, and cannot thereafter have plaintiff's case reinstated on the ground that the dismissal was unauthorized. Corbin v. Goepper, 184 Ga. 559, 192 S.E. 24 (1937); Wilson v. N.E. Isaacson of Ga., Inc., 139 Ga. App. 582, 229 S.E.2d 29 (1976).
If the record reveals that counsel in fact negotiated and agreed on a compromise prior to trial, such settlement agreement once entered into cannot be repudiated by either party and will be summarily enforced by the court. Calhoun v. Cook, 362 F. Supp. 1249 (N.D. Ga. 1973), aff'd, 522 F.2d 717 (5th Cir. 1975).
Enforcement of settlement not determinative of rules violation.
- Although a third party may enforce a settlement agreement that an attorney made without proper authority, that enforcement does not determine whether the attorney has violated the disciplinary rules of the State Bar. In re Lewis, 266 Ga. 61, 463 S.E.2d 862 (1995).
Enforcement of settlement agreement between two versions.
- Trial court did not err by enforcing a settlement agreement because two written versions of an agreement negotiated by counsel were signed by the mortgagor and both documents contained the main disputed term, namely the modification of the security deed on the Georgia home, and both documents provided that the parties would execute all documents necessary to resolve the matter and cooperate to effectuate the settlement in a timely manner. Tillman v. Vinings Bank, 324 Ga. App. 469, 751 S.E.2d 117 (2013).
Attorney compromising client's defense.
- Attorney may not compromise the client's claim or defense unless the compromise is specially authorized in writing or ratified, or unless the doctrine of estoppel, or some other special equity intervenes. Equitable Gen. Ins. Co. v. Johnson, 166 Ga. App. 215, 303 S.E.2d 757 (1983).
Cited in Lovelace v. Lovelace, 179 Ga. 822, 177 S.E. 685 (1934); Cook v. Wier, 185 Ga. 418, 195 S.E. 740 (1938); Galfas v. Ailor, 81 Ga. App. 13, 57 S.E.2d 834 (1950); Manis v. Genest, 210 Ga. 16, 77 S.E.2d 525 (1953); Hatcher v. Georgia Farm Bureau Mut. Ins. Co., 112 Ga. App. 711, 146 S.E.2d 535 (1965); M & M Mars v. Jones, 129 Ga. App. 389, 199 S.E.2d 617 (1973); Ampex Credit Corp. v. Bateman, 554 F.2d 750 (5th Cir. 1977); Johnson v. State, 152 Ga. App. 624, 263 S.E.2d 509 (1979); Lennon v. Aeck Assocs., 157 Ga. App. 294, 277 S.E.2d 289 (1981); White v. Owens, 172 Ga. App. 373, 323 S.E.2d 167 (1984); Nix v. Crews, 200 Ga. App. 58, 406 S.E.2d 566 (1991); Bell v. Bell, 247 Ga. App. 462, 543 S.E.2d 455 (2000).
Oral and Written Agreements
Settlement agreements required to be in writing.
- Settlement agreements between attorneys must be in writing in order to be binding. Westwood Place, Ltd. v. Green, 153 Ga. App. 595, 266 S.E.2d 242, aff'd in part, rev'd in part, sub nom. Leventhal v. Green, 246 Ga. 287, 271 S.E.2d 194 (1980).
Agreement between counsel on behalf of their clients must be in writing in order to be enforceable if the very existence of the agreement is disputed. LeCroy v. Massey, 185 Ga. App. 828, 366 S.E.2d 215 (1988).
Oral agreement was not enforceable because "the existence of the agreement" was disputed. Abrams v. Abrams, 262 Ga. 170, 416 S.E.2d 88 (1992).
Exceptions to writing requirement.
- Agreements by counsel to be binding upon their clients must be in writing, except if such agreements are made in open court, or if one party is misled by fraudulent misrepresentations of the other. Davenport v. Davenport, 218 Ga. 475, 128 S.E.2d 772 (1962).
There is no law or rule which requires agreements between counsel, when made in open court, to be in writing. Wilson v. State, 145 Ga. App. 315, 244 S.E.2d 355 (1978).
Although ordinarily a settlement agreement must be reduced to writing, if there is no dispute as to either the existence or terms of settlement, then the client will be bound by the agreement's terms even in the absence of a writing. Clark v. City of Zebulon, 156 F.R.D. 684 (N.D. Ga. 1993).
Enforceable oral agreements.
- Oral settlements or agreements between counsel, acting with apparent authority, have been consistently enforced if the agreement has been at least partially performed to the detriment of the party seeking to enforce the agreement. General Communications Serv., Inc. v. Georgia Pub. Serv. Comm'n, 149 Ga. App. 466, 254 S.E.2d 710, aff 'd, 244 Ga. 855, 262 S.E.2d 96 (1979).
Section allows attorneys for parties involved in litigation to reach enforceable agreements terminating the litigation, and such settlement agreements reached by and between counsel for the litigants are binding on the clients even if the agreement is oral; such an agreement is binding only if it is clear that the agreement is full and complete, covers all issues, and is understood by all litigants concerned. Providers Benefit Life Ins. Co. v. Tidewater Group, Inc., 8 Bankr. 930 (Bankr. N.D. Ga. 1981).
If the attorneys of a propounder of a will and caveators did not dispute the existence or terms of a settlement agreement, the trial court correctly concluded that the oral settlement agreement as made between the attorneys and memorialized by a typed document rendered the propounder's alleged lack of consent irrelevant to the existence and terms of any such agreement. Tidwell v. White, 220 Ga. App. 415, 469 S.E.2d 258 (1996).
Attorneys writings may show agreement.- In determining the existence or terms of a disputed settlement agreement in the absence of a formal writing signed by the parties, letters or documents prepared by attorneys which memorialize the terms of the agreement will suffice. In re Hopson, 216 Bankr. 297 (Bankr. N.D. Ga. 1997).
Limitations on Attorney's Authority
Agreement binding on client unless client prohibited agreement.
- Alleged agreement of counsel was binding upon the defendant since it did not appear that the defendant restricted the authority of the attorney by prohibiting the making of such an agreement. Reece v. McCormack, 188 Ga. 665, 4 S.E.2d 575 (1939).
Opposing party aware of limitations on attorney's authority.
- Attorney is without authority to compromise client's case if adverse party or that party's attorney knows that the opponent is not consenting to such disposition of the case as the case is the property of the client, not that of counsel; it is a compromise if there be a surrender of any right which the client has invoked in the client's pleadings to the court. Evans v. Brooke, 182 Ga. 197, 184 S.E. 800 (1936).
Opposing party unaware of limitations on attorney's authority.- Client is bound by the attorney's agreement to settle action, even though attorney may not have had express authority to settle, if the opposing party was unaware of any limitation on the attorney's apparent authority. Glazer v. J.C. Bradford & Co., 616 F.2d 167 (5th Cir. 1980).
If the dispute as to an agreement is not between opposing parties but is, rather, between the attorney and the client, and there is no challenge to the existence or the terms of an agreement but only to an attorney's authority to enter into an agreement, and if the opposite party is ignorant of any limitation upon the attorney's authority, the client will be bound by the attorney's actions, even in the absence of a writing or detrimental reliance by the opposing party. Brumbelow v. Northern Propane Gas Co., 251 Ga. 674, 308 S.E.2d 544 (1983); Tranakos v. Miller, 220 Ga. App. 829, 470 S.E.2d 440 (1996).
Attorney had no apparent authority to bind employer in mediation settlement.
- Trial court erred in denying a former employer's motion for summary judgment in a former employee's action to enforce a mediation settlement because the employer's attorney did not have apparent authority to bind the employer to the settlement agreement since the settlement agreement expressly provided for the signature of the employer's president, who refused to sign the agreement; the evidence did not show that the president either intended to make the employee believe that the attorney was authorized to act for the president or realized that the president's conduct was likely to create such belief. OMNI Builders Risk, Inc. v. Bennett, 313 Ga. App. 358, 721 S.E.2d 563 (2011).
Discharge of Attorney or Parties
Client bound by acts of attorney unless discharge reordered.
- If attorney at law had actually appeared in court on behalf of a client and had thus become the attorney of record for that party, that attorney's authority as an officer of the court could not be limited by any private agreement between the client and the attorney, and if the attorney of record continued to act as such after the attorney had in fact been discharged, the client continued to be bound thereby, until the record which established the attorney's relationship was made to indicate the attorney's discharge. Rooke v. Day, 46 Ga. App. 379, 167 S.E. 762 (1932).
Defendants' rights unaffected by undisclosed attorney discharge.
- Rights of defendants in a cause are not affected by the plaintiff's undisclosed discharge of plaintiff's attorney; and so long as the plaintiff permits the attorney to remain the plaintiff's attorney of record, the plaintiff is bound, as against the defendants' ignorance, without fault on their part, of the attorney's discharge, by any acts that by virtue of plaintiff's retainer the attorney was authorized to do, and the same rule applies if the attorney personally withdraws from the case. Corbin v. Goepper, 184 Ga. 559, 192 S.E. 24 (1937).
Attorney's discharge of defendants binding on client.
- Absent evidence on the record of any fraud, collusion, accident, mistake, or violation of express direction, an attorney's decision to discharge parties defendant, presumably on the ground that the statute of limitations had run as to those defendants, is binding on the clients over their objection, even if there may be some question as to whether the statute of limitations had run as to these defendants. Smith v. Emory Univ., 137 Ga. App. 785, 225 S.E.2d 63, cert. denied, 429 U.S. 869, 97 S. Ct. 180, 50 L. Ed. 2d 149 (1976).
Remedies for Unauthorized Settlement
Suit against attorney.
- Client's remedy for unauthorized settlement is not to forbid such settlement in the first place, but to force the client to sue the client's own lawyer after the fact under the Rules and Regulations of the State Bar of Georgia. Vandiver v. McFarland, 179 Ga. App. 411, 346 S.E.2d 854 (1986).
Client not liable for attorney's illegal acts.
- Attorney, hired for the sole purpose of collecting moneys on a judgment, who performs tortious or illegal acts without the client's authorization or ratification does not make the client liable because the general retention of the attorney only authorizes legal acts by the attorney. Plant v. Trust Co., 168 Ga. App. 909, 310 S.E.2d 745 (1983).
Practice and Procedure
Violation in personal injury action.
- Attorney committed an obvious violation of Ga. St. Bar R. 4-102(d):1.2 and O.C.G.A. § 15-19-5 when the attorney obtained a settlement in a personal injury action without a Chapter 13 debtor's authority. In re Thornton, Bankr. (Bankr. S.D. Ga. Aug. 8, 2005).
Effect of party negotiation.
- O.C.G.A. § 15-19-5 did not apply to an alleged oral agreement among parties concerning distribution of property in an estate since the agreement was negotiated by the parties rather than the parties' attorneys. Hennessey v. Froehlich, 219 Ga. App. 98, 464 S.E.2d 246 (1995).
Attorney accepting service of process.
- Attorney at law may not, within authority, accept service of process by which court acquires jurisdiction over a party. Rooke v. Day, 46 Ga. App. 379, 167 S.E. 762 (1932).
Notice to attorney of record is notice to client.
- Notice as to orders and times of hearings to an attorney whose name is of record as counsel for a client, or who has represented the client as the leading or equally associated counsel in the previous trial or proceedings in the matter, is notice to the client. Fluellen v. Campbell Coal Co., 54 Ga. App. 355, 188 S.E. 54 (1936).
Untimely actions of attorney bound client.
- Trial court erred by reversing the decision of the Georgia Department of Driver Services (Department) because the evidence supported the decision of the Department in denying, as untimely, the driver's request for an administrative license suspension, pursuant to O.C.G.A. § 40-5-67.1(g), since the actions of the driver's attorney in failing to mail a timely request for a hearing were imputed to the driver. Mikell v. Hortenstine, 334 Ga. App. 621, 780 S.E.2d 53 (2015).
Unauthorized appearance of attorney.
- Judgment rendered against party upon wholly unauthorized appearance of attorney may be set aside in a direct proceeding for that purpose. Rooke v. Day, 46 Ga. App. 379, 167 S.E. 762 (1932).
Clients' absence from court when judgment entered is immaterial.
- Fact that clients are not actually present in court when judgment is rendered and entered with consent of their counsel, and know nothing about the judgment until later is immaterial. Howell v. Howell, 188 Ga. 803, 4 S.E.2d 835 (1939).
Client's assent to stipulation vests lawyer with authority.
- If client gives express assent to a stipulation made by the client's lawyer referring issues to arbitration in action involving a dispute over a land line, the attorney is thereby vested with express authority to enter into the stipulation. Union Camp Corp. v. Dyal, 460 F.2d 678 (5th Cir.), cert. denied, 409 U.S. 849, 93 S. Ct. 56, 34 L. Ed. 2d 90 (1972).
Consent agreement upheld.
- Defendant is estopped to assert that defendant's attorney's agreement to dismiss a juror is error when a consent agreement was announced by the judge in the defendant's presence, absent evidence of fraud, collusion, accident, mistake, or violation of express direction. Wilson v. State, 145 Ga. App. 315, 244 S.E.2d 355 (1978).
Judgment rendered with counsel's consent binding upon client.
- Verdict and judgment rendered with consent of counsel is binding upon client, absent fraud and collusion upon the part of the counsel with whose consent such verdict and judgment is rendered. Reece v. McCormack, 188 Ga. 665, 4 S.E.2d 575 (1939).
Judgment rendered with consent of counsel is binding on client unless such consent was in violation of express directions given by client to attorney and known to the adverse party or that party's attorney, or unless there was otherwise fraud and collusion on the part of counsel so consenting, participated in by the adverse party or that party's attorney. Howell v. Howell, 188 Ga. 803, 4 S.E.2d 835 (1939).
Denial of motion to dismiss appeal.
- If appeal and bond have been executed and signed by attorney for caveators to a will by typing the names of the caveators thereto and signing the names in the attorney's own handwriting followed by a seal, it is not error to deny the motion to dismiss the appeal. Ganns v. Worrell, 216 Ga. 512, 117 S.E.2d 533 (1960).
Denial of injunction held proper.
- Since it was sought to enjoin collection of an execution upon the ground that it resulted by virtue of an agreement to consent to the judgment on which it issued if the case was not settled by the term at which the judgment was taken, and that the attorney making such agreement had never been employed by and did not represent the defendant, and since the evidence showed not only that an attorney admittedly employed by the defendant consented thereto, but there was also evidence that the attorney who made the agreement was employed by the defendant, a judgment denying an interlocutory injunction would not be reversed. Reece v. McCormack, 188 Ga. 665, 4 S.E.2d 575 (1939).
RESEARCH REFERENCES
Am. Jur. 2d.
- 7 Am. Jur. 2d, Attorneys at Law, §§ 3, 4.
C.J.S.- 7A C.J.S., Attorney and Client, §§ 195, 197.
ALR.
- Right of attorney, parent, guardian ad litem, or next friend to remit from verdict or judgment in favor of infant, 30 A.L.R. 1111.
Authority of attorney to bind client by extrinsic agreement to alter or vary terms of a written instrument, 76 A.L.R. 1461.
Warrant of attorney to confess judgment signed by two or more as joint, or several, or joint and several, 89 A.L.R. 403.
Validity and effect of cognovit or warrant of attorney to confess judgment in conditional sale contract, 89 A.L.R. 1106.
Authority of attorney to employ another attorney at expense of client, 90 A.L.R. 265.
Extrajudicial admissions of fact by attorney as binding client, 97 A.L.R. 374.
Authority of next friend or guardian ad litem, or of attorney employed by him, to receive payment or acknowledge satisfaction of judgment in favor of infant, 111 A.L.R. 686.
Authority of attorney to dismiss or otherwise terminate action, 56 A.L.R.2d 1290.
Attorney's inaction as excuse for failure to timely prosecute action, 15 A.L.R.3d 674.
Disqualification of attorney, otherwise qualified, to take oath or acknowledgment from client, 21 A.L.R.3d 483.
Attorney's mistake or neglect as excuse for failing to file timely notice of tort claim against state or local governmental unit, 55 A.L.R.3d 930.
Attorney's submission of dispute to arbitration, or amendment of arbitration agreement, without client's knowledge or consent, 48 A.L.R.4th 127.
Authority of attorney to compromise action - modern cases, 90 A.L.R.4th 326.