longs peculiarly to a court of equity, and can scarcely ever be conducted without embarrassment in a court of law."11

"But the client's interests will be protected from such abuse of the relation at law as well as in equity." 12

The knowledge which is gained through the confidence reposed in an attorney by his client is such that it gives the attorney great opportunities for fraud. These opportunities are most often found when an attorney deals with his client concerning the property or rights as to which he is consulted and to defend which he is engaged. His knowledge of the true condition of affairs is most often more exact than his client's, for, while the latter may know all the facts and circumstances-and frequently the attorney knows more of these he does not know the full legal effect of these upon his rights. The attorney, however, having knowledge of the facts, together with their legal effect, is in a far better position to judge of the real condition of affairs than is his client. This, together with the dependence and confidence which the latter places in him, furnishes vast opportunities for deception and for obtaining very great advantages over the latter.

Attorneys, being officers of the court, and having the duty of establishing justice, rather than doing injustice, should be watched by the court in order to prevent them from perpetrating fraud upon their clients. So it is said that all contracts and transactions between an attorney and his client are closely scrutinized by the courts, lest any undue advantage be

11 Broyles v. Arnold, 11 Heisk. 484.

12 3 Am. & Eng. Ency. of Law, 2d ed., 333; Newman v. Payne, 2 Ves. Jr. 199; Gruby v. Smith, 13 Ill. App. 43.

taken by the courts,13 and some courts say that no other transactions are more jealously guarded.14 Contracts between attorney and client are not necessarily void on account of the relation existing between them, 15 but they are presumptively fraudulent; and when suit is brought concerning them, the burden is on the attorney to show that the highest degree of fairness and good faith has been exercised, and that no advantage has been taken of the relation existing, and he must show, on the other hand, that, as attor ney, he has disclosed all facts and circumstances necessary to form a correct judgment as to the transaction. 16

A fortiori, if the attorney misrepresents the fact or uses active measures to obtain the object, it is fraudulent.17 Thus, when an attorney misrepresents the responsibility of a debtor, against whom a client holds a demand, and thereby prevails upon the client to sell him the demand for an amount much less than he collects thereon, the client may recover.18 Some courts go further and hold that it is not necessary that fraud

13 Mills v. Mills, 26 Conn. 213; Miles v. Ervine, 1 McCord Eq. 524, 16 Am. Dec. 623; Gruby v. Smith, 13 Ill. App. 43; Gray v. Emmons, 7 Mich. 533; McKay v. Lancaster, 15 Ky. Law Rep. 159; Starr v. Vanderheyden, 9 Johns. 253, 6 Am. Dec. 275; Yeamans v. James, 27 Kan. 195.

14 Mills v. Mills, 26 Conn. 213; Yeamans v. James, 27 Kan. 195. 15 Miles v. Ervine, 1 McCord Eq. 524, 16 Am. Dec. 623; Yeamans v. James, 27 Kan. 195.

16 Rogers v. R. E. Lee Min. Co., 9 Fed. 721, 3 McCrary, 76; Miles v. Ervine, 1 McCord Eq. 524, 16 Am. Dec. 623; Staley v. Dodge, 50 Ill. 43; Gray v. Emmons, 7 Mich. 533; Dunn v. Record, 63 Me. 17; Elmore v. Johnson, 143 Ill. 513, 36 Am. St. Rep. 401, 32 N. E. 413; Mason v. Ring, 3 Abb. App. Dec. 210, 2 Abb. Pr., N. S., 322; Ryan v. Ashton, 42 Iowa, 365; Yeamans v. James, 27 Kan. 195; Dunn v. Dunn, 42 N. J. Eq. 431, 7 Atl. 842; Tancre v. Reynolds, 35 Minn. 476, 29 N. W. 171.

17 Cleine v. Englebrecht, 41 N. J. Eq. 498, 5 Atl. 718; Smith v. Thompson, 7 B. Mon. (Ky.) 305; Marshall v. Joy, 17 Vt. 546. 18 Marshall v. Joy, 17 Vt. 546.

ulent intent be shown or presumed. As was said by the United States supreme court: "A court of equity, from the mere fact of such relation, would fasten upon the purchase [of a judgment] a trust, without any inquiry into motives or intentions of the attorney in making the purchase, and compel him to give up the benefits and advantages of the reimbursement of the purchase money. Neither fraud or imposition need be shown. The client may, at his election, treat the act as done for his benefit." 19

It has been held unnecessary "to inquire whether the purchase be an advantageous one or not, because the fact may be so, and yet not susceptible of being distinctly and clearly proved at the time." 20 Although it has been said that it must be shown that the client has suffered injury to the abuse of confidence.21 This does not mean, however, that the attorney may not deal with his client if he observes due caution to avoid the exercise of undue influence, and to place his client upon equal footing with himself in the transaction, and to take no advantage of their relation. Contracts which are voluntarily and advisedly made, with knowledge of the nature and effect of the same, and which are open and without conceal ment or imposition, will be sustained.22 Again, the relation of attorney and client must exist at the time of the transaction, and to avoid contracts, entered into subsequent or prior to such relation, the burden of proof is upon the complainant to show fraud.23 If

19 Stocton v. Ford, 11 How. 233, 247. See, also, Wade v. Pettibone, 11 Ohio, 57, 37 Am. Dec. 408; Wheeler v. Williard, 44 Vt. 640; Harper v. Perry, 28 Iowa, 57.

20 Leisinring v. Black, 5 Watts, 303, 30 Am. Dec. 322.

21 Kisling v. Shaw, 33 Cal. 425, 91 Am. Dec. 645.

22 Roman v. Mali, 42 Md. 513; Helms v. Goodwell, 2 Hun, 410.

23 Tancre v. Reynolds, 35 Minn. 476, 29 N. W. 471; Dockery v. McLellen, 93 Wis. 381, 67 N. W. 733.

the court is satisfied that the party holding the relation of client performed the act or entered into the transaction voluntarily, deliberately, and advisedly, knowing its nature and effect, and that no concealment or undue means were used to obtain his consent to what was done, the transaction will be upheld."

24

"The same principles which would prohibit trustees and public officers from buying property of which they have the management, at a sale thereof made and controlled by themselves, would seem to forbid an attorney who manages a suit for the complainant, and has the right to control, to some extent, the sale made by the commissioner, to become a purchaser at such sale. Particularly ought a purchase under such circumstances to be regarded as invalid when it results in a sacrifice of the property, which might be prejudicial to the complainant in the suit, and beneficial alone to the attorney who purchased."25 An attorney cannot avail himself of any settlement obtained through an undue advantage, or by withholding facts in his possession as such attorney. So, where an attorney, employed by one of two administrators to collect debts due the estate upon agreement to look to the estate for fees, obtains a settlement with the other administrator to keep a part of the money collected without disclosing the previous agreement, the latter agreement was held not to be binding upon the estate.20

§ 127. Trustee and Cestui Que Trust.-A well-known and able author has admirably expressed the principles governing the relation of trustee and cestui que

24 Roman v. Mali, 42 Md. 514.

25 Smith v. Thompson, 7 B. Mon. (Ky.) 305. 26 Staley v. Dodge, 50 Ill. 43.

Torts, Vol. I-17

trust, and we can do no better than quote from Mr. Perry:

"Trustees hold a position of trust and confidence, the legal title of the trust property is in them, and generally its whole management and control is in their hands; at the same time, the beneficiaries of the trust may be women or children or persons incompetent to protect their own interests. For these reasons, to protect the weak and helpless on the one hand, and to prevent trustees from using their position and influence for their own gain, and to prevent them from hazarding the trust property upon what they may think to be profitable speculations on the other, they are not allowed to make any profit from their office. They cannot use the trust property, nor their relation to it, for their own personal advantages. All the power and influence which the trust fund gives must be used for the advantage and profit of the beneficial owners, and not for the personal gain and emolument of the trustee. No other rule will be safe, nor would it be possible for the courts to apply any other rule as between trustees and cestuis que trust."27

As the subject of trusts was wholly an equitable one, in England equitable courts had entire control of the relations, and an action on the case would not lie for injuries within them. But in the United States, at least where but one form of action is in use, this distinction is not in force.28

Injuries may be inflicted upon the cestui que trust through the fraud or negligence of the trustee. Inasmuch as fraud is a matter of equitable jurisdiction,

27 Perry on Trusts, 5th ed., sec. 427.

28 Bennett v. Preston, 17 Ind. 291; Barnard v. Soame, Harg. St. Trials, 443. See, also, Ingram on Insolvency, note, 152; Hill on Trustees, 1st Am. ed., 518.