230 A.D. 218 | N.Y. App. Div. | 1930
The committee on character and fitness, appointed by this court, having refused to certify the applicant for admission to the bar, he applies to the court for an order directing the committee to so certify. The applicant, a native born citizen, is married and forty years of age. He graduated from New York University in 1912, and from the Law School of St. John’s College in 1929. He served in the World war. Having received the certificate of the State Board of Law Examiners, he appeared before the committee on character and fitness to have the committee pass upon his character and general fitness. There is no question raised as to his moral worth, although the committee has not passed upon it.
The applicant was asked by the committee two questions: (1) Who discovered America? and (2) What are the expressed powers granted to the United States Government under the Constitution? The applicant, in a respectful way, refused to answer these questions upon the ground that the committee had no power to question him in respect of his learning and ability, as that was determined by his admission to examination by the State Board of Law Examiners and their certificate that he had passed the examination. No question is raised that the applicant by his refusal to answer showed such disrespect for lawful authority that he is not entitled to become a member of the bar.
The question to be determined is the extent of the powers of the committee on character and fitness.
In considering this subject, it will be well to bear in mind that there are four phases of qualifications for admission to the- bar: (1) Academic training; (2) legal training; (3) moral character; (4) belief in the form of and loyalty to the government of the United States.
In order to come to an understanding on this subject, it may be advisable, at any rate it may be of some interest, to consider the development in the matter of admissions to the bar, as shown by Constitution, statutes and rules, to the extent they have been found. The first Constitution of the State (Const. 1777, § 27) provided: “ And all attornies, solicitors and counsellors at law, hereafter to be appointed, be appointed by the court, and licensed by the first judge of the court in which they shall respectively plead or practice; and be regulated by the rules and orders of the said courts.”
In the November term of 1804 a rule was adopted providing that every person who shall be admitted to the degree of attorney of the court, and practiced as such for three years, shall be admitted to practice also as counsel in this court. It is of interest to note that there were admissions as attorney, and also admissions as counsel. This distinction appears for a number of years, but it requires no further consideration here. Of course, separate rules were adopted by the Chancery Court. Only one reference thereto will be made, as after the Constitution of 1846 the separation of the law and equity courts came to an end. In 1815 the rule in Chancery was that no person be admitted to practice as a solicitor in that court until three years after he shall have been admitted to practice as an attorney of the Supreme Court, or unless he shall have served a clerkship of at least three years with a practicing solicitor of the Chancery Court; and the rule further provided that no person was to be admitted to practice as a counselor in this court until two years after he shall have been admitted to practice as a solicitor, or unless he shall be a counselor of the Supreme Court of at least two years’ standing; and that every person to be admitted as solicitor or counselor shall (unless it be otherwise specially ordered) be previously examined before the chancellor, and if found competent he shall be admitted, and not otherwise. Here is the first time that an examination of an applicant was required.
The Constitution of 1821 contained no reference to the appointment of attorneys, but by section 19 of chapter 182 of the Laws of 1823 there was enacted the same provision as in the Constitution of 1777. Into the Revised Statutes of 1827 the revisers incorporated in substance both the requirements of chapter 182 of the Laws of
In 1837 the Supreme Court adopted the following rules:
“ Rule 1. No person shall be permitted to practice as an attorney or counsellor of this court, without a regular admission and license by the court. To obtain such admission and license, the person applying must be examined under the direction of the court.
“ Rule 2. No person shall be admitted to examination of an attorney, unless he shall have served a regular clerkship of seven years in the office of a practicing attorney of this court; but if he has regularly pursued classical studies for four years, or any shorter period, -after the age of fourteen, it may be allowed in lieu of an equal time of clerkship. * * * ”
The evidence of such classical studies shall be:
“1. A diploma conferring the degree of Bachelor of Arts by some incorporated college, or a certificate of the president of such college;
“ 2. If neither can be produced, an affidavit of the teacher or teachers with whom the student has pursued his studies, stating the time spent and the studies pursued, with a specification of the books used; or,
“ 3. If the teacher be dead or absent from the country, so that his affidavit cannot be obtained, then the affidavit of the student himself stating such death or absence, and also the time spent with his teacher or teachers, and the books studied by him under each teacher.”
Rule 4 provides in part: “Any portion of time, not exceeding two years, spent in regular attendance upon the law lectures in the university of New York, shall be allowed in lieu of an equal portion of clerkship in the office of a practicing attorney of this court.” Here was provision for an examination, but what the nature ' of the examination was to be is not expressly stated. The basis of admission to examination was a regular clerkship of seven years. In lieu of this, the regular pursuit of classical studies for four years, or any shorter period, was allowed in lieu of an equal time of clerkship. One of the evidences of classical studies was a diploma conferring the degree of Bachelor of Arts by an incorporated college. This, of course, assumed that the person having the diploma was proficient in academic training. As pursuit of classical studies was taken in lieu of a period of clerkship not exceeding four years, it must follow that a person who had served a seven years’ clerkship was deemed qualified in so far as scholarly attainment was
After the adoption of the Constitution of 1846, under which the Supreme Court was granted general jurisdiction in law and equity, 1847, pursuant to er in part provides: years, applying to be (d counsellor in the (ices of the Supreme (Term thereof; and if good moral char-as of learning and >ered by the clerk mined and found Constitution; and ) as an attorney, * * * >> the Supreme Court adopted rules, Jul chapter 280 of the Laws of 1847, which ■ “ Every male citizen of the age of twenty admitted to practice as attorney, solicit courts of this State, shall be examined by t. Court, which examination shall be at a G if such person so applying shall be found • acter, and to possess the requisite quali ability, the court shall direct an order to thereof, stating that such person has been to possess the qualifications required bj thereupon such person shall be entitled to solicitor and counsellor in all courts in this
The rules were as follows:
) as attorneys, itled to exami- “ Rule 1. Applicants for admission to solicitors and counsellors of this court, whc nation, shall be examined in open court *
nnation he must “ Rule 2. To entitle an applicant to an prove to the court: * * *
“ 2. The evidence of good moral character shall be the certificate of a reputable counsellor of this court, or of some other reputable person known to the court * *
The rules do not state what the nature of the examination was, neither as to general learning nor as to learning in the law. Nothing is said with reference to clerkship or other qualifications of learning.
Pursuant to statutory authority (Code of Procedure, § 470), the Supreme Court adopted rules in August, 1858, which, in effect, are the same as the rules last mentioned except it was provided that in order to entitle an applicant to admission he must sustain “ a satisfactory examination upon the law of real and personal property, contracts, partnership, negotiable paper, principal and agent, principal and surety, insurance, executors and administrators, bailments, corporations, personal rights, domestic relations, Wills, equity, jurisprudence, pleadings, practice and evidence.”
Here the examination was limited to learning in specified subjects of the law. No reference whatsoever is made to scholastic attainments.
It thus appears that moral worth and knowledge of the law are the two essentials. It is likely that the court which framed these
From time to time, laws had been passed by the Legislature under which persons were admitted to the bar on the certificates of certain law institutions. (Laws of 1855, chap. 310; Laws of 1859, chap. 267; Laws of 1860, chaps. 187 and 202, etc.)
The next step was to transfer initial power with reference to admissions to the Court of Appeals. Chapter 486 of the Laws of 1871 provided, in section 1, that it shall be the duty of the judges of the Court of Appeals to establish such rules and regulations as they may deem proper in relation to the admission of persons applying to be admitted as attorneys, solicitors and counselors in all the courts of the State. By section 3 it is provided that every male citizen of the age of twenty-one years, applying to be admitted, shall be examined by the justices of the Supreme Court, or a committee appointed by said court at a General Term thereof, and if such person shall be found to have complied with the rules and regulations prescribed by the Court of Appeals, and approved by said justices of the Supreme Court for his good character and learning, the court shall direct an order to be entered stating that such person has been so examined and found to possess the requisite qualifications required by the Constitution and the rules established by the Court of Appeals. That court adopted rules May 1, 1871 (Appendix, vol. 2, Laws of 1871, p. 2194), by which it was provided that no person shall be admitted to practice without a regular admission and license by the Supreme Court at a General Term thereof, and must be examined under the direction of .the court. The examinations were to be public and to be conducted by the judges of the court or by not less than three practicing lawyers of at least seven years’ standing at the bar, to be appointed by the court. Of what the examinations were to consist the rules do not state. The statute says that the applicant must be approved for his good character and learning. What learning is not stated. It also is provided by the rules of the Court of Appeals that to be admitted to the examination the applicant
Thus there was a division of determination of qualifications: (1) by the State Board of Law Examiners as to the law learning of the applicant, and (2) the moral character of the' applicant. Of course, a State Board of Law Examiners was not appointed for the purpose of determining the scholastic attainments of the applicant. They were law examiners. The General Term was not to examine as to learning, and, therefore, it must have been assumed that when a man appeared before the State Board of Law Examiners he was qualified in scholarly attainments. This method of procedure and practice continued without change, as far as statutes are concerned, except in minor detail. (Laws of 1895, chap. 946; Judiciary Law, §§ 53, 56, 88, 460 and 461, being chap. 35 of the Laws of 1909 [chap. 30 of the Consolidated Laws].) It seems that it must have been the view of the Court of Appeals that academic training was neither within the province of the law examiners nor of the court, because by the rules adopted by the Court of Appeals at that time, provision is made for certain academic training as a condition precedent to admission to examination. The first of these rules which I have been able to find are those adopted by the Court of Appeals on December 2, 1895, to take effect January 1, 1896. The first of these rules were adopted by the Court of Appeals May 1, T882 (Matter of Moore, 108 N. Y. 280). They were amended March 19, 1891, and readopted when the rules were revised October 28, 1892; the latter were amended October 22, 1894. New rules were adopted December 2, 1895, to take
It is when we come to chapter 253 of the Laws of 1912, by which section 88 of the Judiciary Law was amended, that the difficulty seems to arise. Under that law, upon the certificate of the State Board of Law Examiners that a person has passed the required examination, the Appellate Division of the Supreme Court in the department in which the person shall have resided for at least six months, if it shall be satisfied that such person possessed the character and general fitness requisite for an attorney and counselor at law, shall admit him to practice as such attorney and counselor at law in all the courts of this State. The words “ general fitness ” were added to the word “ character ” as qualifications for determination by the Appellate Division. It is claimed that it was intended by these words “ general fitness ” to empower the committee on character and fitness to inquire into the matter' of the scholastic qualifications of the candidate for admission. It might also be urged that, if these words included that, they also included legal learning.
Subdivision 1 of section 88 of the Judiciary Law was amended by
While the committee has undoubtedly acted in good faith and possesses a keen sense of its responsibility, it has in good faith trespassed upon a province where it does not belong. Neither this court nor its committee may assume authority to which it has no right. An examination of the statutes and rules leads to the conclusion that it was intended to have a uniform, comprehensive scheme of admissions to the bar; (1) scholarly accomplishments, to be determined by the rules of the Court of Appeals; (2) legal learning, to be determined by the State Board of Law Examiners; (3) character and general fitness, to be determined by the Appellate-Division through its committee on character and fitness. The
Rule 1 of the Rules of Civil Practice, which are binding upon the Supreme Court (Laws of 1920, chap. 902, as amd. by Laws of 1921, chap. 370), provides in part: “No person shall receive a certificate from any such committee who does not satisfy the committee that he believes in the form of, and is loyal to, the government of the United States.” This provision does not call for inquiry into one’s learning. That has already been determined.
In the opinion of the court, it is the duty of the committee on character and fitness to certify to this court an applicant for admission who has been certified by the State Board of Law Examiners that he has passed the examination and if the candidate satisfies the committee as to his moral character and general fitness and. that he believes in the form of, and is loyal to, the government of the United States. This court does not propose to define the limitations of questions which may be propounded to a candidate in these respects. The power of the committee having been defined, there can be no doubt that the committee, the members of which are lawyers of high standing and who are rendering a fine voluntary public service, will adopt procedure and practice accordingly. The legislation and the rules adopted by the Court of Appeals indicate that it was not intended by the words “ general fitness ” to call upon the committee on character and fitness to examine into a candidate’s academic or legal learning.
The application should be returned to the committee on character and fitness for action in accordance with the foregoing.
Present — Lazansky, P. J., Rich, Young, Hagarty and Carswell, JJ.
Application returned to the committee on character and fitness for action in accordance with opinion.