An attorney has authority:
A. to execute in the name of his client any bond or other written instrument necessary and proper for the prosecution of an action or proceeding about to be or already commenced, or for the prosecution or defense of any right growing out of an action, proceeding or final judgment rendered therein;
B. to bind his client to any agreement in respect to any proceeding within the scope of his proper duties and power, but no evidence of any such agreement is receivable, except the statement of the attorney himself, his written agreement signed and filed with the clerk or an entry thereof on the records of the court;
C. to receive money claimed by his client in an action or proceeding during the pendency thereof or after judgment, unless a revocation of his authority is filed and, upon payment thereof and not otherwise to discharge the claim or acknowledge satisfaction of the judgment.
History: Laws 1909, ch. 53, § 29; Code 1915, § 356; C.S. 1929, § 9-130; 1941 Comp., § 18-110; 1953 Comp., § 18-1-10.
ANNOTATIONSBracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Section does not alter case law governing authority of attorney to settle or compromise cases for his client. Augustus v. John Williams & Assocs., 1979-NMSC-002, 92 N.M. 437, 589 P.2d 1028.
Oral settlement by attorney who has specific authority to settle is enforceable under certain circumstances. Augustus v. John Williams & Assocs., 1979-NMSC-002, 92 N.M. 437, 589 P.2d 1028.
Client accepting benefits of unauthorized settlement is bound. — Where an attorney has not been authorized to settle a case but the client accepts the benefits of the settlement before attempting to treat the settlement as unauthorized and unenforceable, the client is bound by his attorney's settlement. Augustus v. John Williams & Assocs., 1979-NMSC-002, 92 N.M. 437, 589 P.2d 1028.
Authority to settle. — An attorney may not settle a client's claim without specific authorization from the client. If there is an issue as to whether there was authorization, the party seeking enforcement of the alleged settlement agreement has the burden of establishing authorization. If it is undisputed that client authorization existed, the burden of persuasion is on the party seeking to escape from the enforceability of an authorized settlement agreement. Gomez v. Jones-Wilson, 2013-NMCA-007, 294 P.3d 1269.
Apparent authority to settle. — It is the client's conduct, not the attorney's conduct, that gives rise to apparent authority. The law requires some affirmative indication from the client that the client's attorney has the appropriate authority to settle before a settlement agreement is enforced. Gomez v. Jones-Wilson, 2013-NMCA-007, 294 P.3d 1269.
No apparent authority to settle. — Where plaintiff was injured due to the negligence of the driver of a truck that the driver's employer had leased from a leasing agency; plaintiff's attorney began settlement negotiations with the leasing agency; the leasing agency's attorney subsequently made a written settlement offer for both the leasing agency and the driver; after the leasing agency's attorney's offer expired, the attorneys had a telephone conversion; the leasing agency's attorney claimed that plaintiff's attorney orally agreed to settle with both the leasing agency and the driver; plaintiff's attorney claimed that plaintiff's attorney orally agreed only to settle with the leasing agency; plaintiff asserted that plaintiff had agreed to settle only with the leasing agency and never authorized plaintiff's attorney to settle with the driver; plaintiff's assertion was undisputed; and there was no evidence of any conduct or communication by plaintiff suggesting that plaintiff clothed plaintiff's attorney with apparent authority to settle with the driver, the alleged settlement agreement with the driver was unenforceable because plaintiff's attorney lacked express authority to settle with the driver and the driver failed to present evidence that plaintiff, rather than plaintiff's attorney, acted in a way that created the appearance that plaintiff's attorney had authority to settle with the driver. Gomez v. Jones-Wilson, 2013-NMCA-007, 294 P.3d 1269.
Scope of authority. — Where defendant did not personally sign the answer in the prior suit, in which appears the admission of the debt now sued upon, but in her answer in the present suit she admits her deceased husband signed the answer in the prior suit as attorney for her and himself, and no question has been raised as to his authority to sign the answer as her attorney or to make the admission on her behalf, then his signature on her behalf to the answer in the prior suit had the same effect as if she had personally signed. Smith v. Walcott, 1973-NMSC-074, 85 N.M. 351, 512 P.2d 679 (decided under former law).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 7 Am. Jur. 2d Attorneys at Law §§ 129 to 167.
Right of attorney to remit from verdict or judgment in favor of infant, 30 A.L.R. 1111.
Adjustment of claims, 151 A.L.R. 795.
Authority of attorney to compromise action, 30 A.L.R.2d 944, 90 A.L.R.4th 326, 5 A.L.R.5th 56.
Compelling admission to membership in professional association or society, 89 A.L.R.2d 964.
Right of attorney to continue divorce or separation suit against wishes of his client, 92 A.L.R.2d 1009.
Attorney's submission of dispute to arbitration, or amendment of arbitration agreement, without client's knowledge or consent, 48 A.L.R.4th 127.
Attorney's personal liability for expenses incurred in relation to services for client, 66 A.L.R.4th 256.
Authority of attorney to compromise action - modern cases, 90 A.L.R.4th 326.
7A C.J.S. Attorney and Client §§ 191 to 217, 280 to 384.