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to prepare and present its final report at the 1910 meeting in the light of the replies received.
Hollis R. BAILEY, Massachusetts,
Following the report of the Committee, FRANKLIN M. DANAHER, Secretary of the State Board of Law Examiners for New York, read a paper based largely on the experiences of the New York board as relating to the proposed Standard Rules for Admission to the Bar. Judge Danaher prefaced his address by saying that ten years ago he read a paper before the Section, in which he stated that too much attention was being paid to the Law School as a factor in legal education, and not enough to the education in law of the law clerk whose environment would not permit of his attendance upon a resident law school, that the latter represented the great bulk of those now being admitted to practice, and he hoped some of the wisdom of the law educators would be used in that direction, for the law clerks were still being neglected. Mr. Danaher
agement of those states which thus far have no state rules, and for the information of those states whose rules need strengthening or amendment. We presume to suggest in brief form some salient conditions without which, in our opinion, no set of rules would be either complete or effective. They relate mainly to the preliminary educational qualifications, to the service of an actual bona fide clerkship, and to law school attendance and study as part of the required time of preparatory study for admission to the bar examinations.
Primarily, no person should be allowed to begin the study of the law unless he has at least a high school education or its equiv. alent as defined by state educational authority. Our experience is that a high school educational requirement is high enough and practically sufficient, and the extreme limit of what we can get. An examination of our records shows that there is very little, if any, difference in the percentages of high school graduates and collegiates. We cannot make the profession an aristocracy, nor keep therefrom the many ambitious young men who seek its fatuous wealth and fame, and to ask for more than the high school requirement would be to raise a genuine opposition to all rules and a clamor which would prevent the getting even of that concession. We lay particular stress upon the condition that the educational requirement should be possessed prior to the commencement of the study of the law. One reason is that a student cannot divide his time and attention between his work in obtaining his pre-educational condition and his law studies. One must of necessity give way to the other, with the practical result that the law work will be neglected until the educational condition is worked off, to the general demoralization of the student, who will come to his examinations unprepared and ill fitted to enter upon the practice of his profession. We assume as admitted the necessity of some pre-educational qualifications. *
The proposed rules should also provide that all law clerkships must be bona fide, and actually served in the law office of a practicing attorney in the jurisdiction. They should require that during the entire period of such clerkship, except during the stated vacation time, the applicant be actually employed by the attorney as a regular law clerk and student in his law office, and under his direction and advice engaged in the practical work of the office during the usual business hours of the day, proof of which must be made by the affidavits of the attorney and of the applicant. The above is substantially the requirement and the language of the rule governing law clerkships in New York. It is based upon the old decisions and rules of court when the law was more of a closed profession, as the same are more fully set forth in Mr. Lucien Hagh Alexander's intelligent and practical paper,
said in part:
We have been honored by an invitation from the Chairman of the Section of Legal Education to read a paper, based upon our experiences as a member of the New York State Board of Law Examiners, on the proposed standard Rules for Admission to the Bar.
The New York board can justly claim an abundance of practical experience in the prenises.
By reason of differences in local conditions, it is substantially impossible to have actual uniformity in the rules regulating admission to the bar throughout the states composing the Union. The American Bar Association, through its section of legal education, is doing most excellent work in formulating standard rules for admission, which should contain all the conditions which experience has determined to be essential in that regard for the good of the state and the profession, in aid and encour
entitled “Some Admission Requirements," read before the Section of Legal Education in 1905 (Rep. Am. Bar Ass'n, vol. 28, p. 619), to which paper we wish to acknowledge our indebtedness.
We believe that New York made a grievous error when in 1895 it cut loose from the traditions of the past and allowed students to qualify for admission to the bar without spending some portion of the required period of study in serving a regular clerkship in the law office of a practicing attorney within the jurisdiction.
There is a decided difference in pedagogic opinion concerning the advisability and practicability of law schools teaching pleading and practice. We contend that those subjects can and should be taught in the law schools. The school can develop the subjects historically, lay down their principles, make plain their logic, explain their terms, and familiarize the student with the forms. He can then begin the service of a law clerkship, and with his law school training he will learn practice and pleading and how to do things in one-quarter of the time he would require had he begun his law studies by registering as a clerk.
Our contention is that a thorough law school course, which should include courses in pleading and practice, should be compulsorily supplemented by a year of active bona fide law clerkship, and for that reason we have always advocated a three-year period of law study, two years of which should be spent in a law school and one year in an office, both compulsory, and in that order, if possible. Some of the men who come to the bar in New York without office experience, mindful of their deficiencies seek a clerkship after admission; but the vast majority of such, without sense of responsibility, begin to practice at the expense of their clients, to the impeding of the due and orderly course of justice by reason of their foolish and inexcusable errors.
The standard rules should contain a condition that each applicant should serve an actual bona fide law clerkship of not less than a year as a part of the required time of study.
In regard to the law schools we will not gild refined gold, nor add perfume to the lily, by repeating all the arguments and facts and conditions which go toward conclusively establishing that a proper and complete education in the law cannot be obtained, except by attendance upon a proper law school. We believe so to the extent that we advocate on principle, founded on experience, that the standard rules should contain a clause making law school attendance compulsory. New York has no such rule; but its methods of examination have so impressed upon candidates for admission to the bar the fact that the best education possibly attainable in the law is none too sufficient that upwards of 80 per cent. of its applicants have had
some law school training, and the other 20 per cent. would if they could.
In adding such a requirement, the Section of Legal Education should not lose sight of the fact that the state rules regulating admission to the bar represent the people of the state and its average intelligence, and the poor as well as the rich, to whom the cost in time and money of attendance upon a law school is negligible, and that those who state "that Abraham Lincoln would never have,” etc., will be heard from, and that perhaps such a rule cannot be adopted at once; but it will be in time, as a necessity forced upon the state by conditions at the bar, which can only be corrected by higher education. In New York four years of compulsory attendance upon a registered medical college is required of medical students, and no good reason exists why a condition of similar purport should not be found in all rules regulating admission to the bar.
Our appreciation of the valuable work and the absolute necessity of law school training is such that we are inclined to paraphrase the saying of the Kentucky colonel, speaking of the state beverage, and apply it to the law schools, viz., “that all law schools are good, but some are better than others."
We see no reason why a night law school should be condemned simply because it teaches law by gas or electric light, instead of sunlight. If a night law school has competent professors, sufficient courses of study, and the required number of hours, we believe it should be encouraged, and time spent in the successful completion of the work thereat should be allowed by the bar examiners. We believe with Mr. Alexander (Am. Bar. Ass'n Rep. 1905, vol. 28, p. 643), who, in speaking of "the splendid work which is being done by night law schools,” says: “They are a Godsend to the ambitious clerk in a law office, desirous of entering the profession; for they afford him an opportunity to have his course of study systematized, to have his knowledge of the theory developed along national consecutive lines." If night law schools are such as he depicts them, we cannot see why time spent in taking such courses should not be allowed, if the school be otherwise proper and equal in the requirements to the day school whose time is counted towards admission to the bar. So it is with correspondence schools of law. They are an existing fact, having thousands of enrolled students, whose environment will not permit their attendance upon a resident law school, ambitious, deserving, and hard-working young Americans, who are doing all they can and the best th can to obtain an education in the law, and there is no sense in condemning either them or the recognized modern method of obtaining an education by correspondence.
It is part of a high-grade university movement, and is practical and educationally acceptable; for some of the leading universi. ties of America, like Chicago and Wisconsin, are conducting the majority of their courses by correspondence, and many others are doing the same sub nomine "University Extension,” under which title that great educational authority, the Board of Regents of the State of New York, recognizes the system. We do not approve of fake or fraudulent correspondence schools of law, any more than we do of fake or fraudulent day schools. We believe, however, that a properly organized, chartered, and state supervised correspondence school of law can be of incalculable benefit to the state and to the profession, to law clerks who cannot attend upon a resident law school, and do no harm to either, and as time spent in taking such courses cannot and should not be allowed to count as part of the required time of law study, the profession, to whom the matter is academic, should not be Inveigled into an onslaught upon correspondence schools of law.
Another important question is as to what constitutes a proper law school. New York has gone far towards settling the matter in a sensible and proper way. A law school, whose time is allowed as part of the required period of law study in New York, must be an incorporated law school, or a law school connected with an incorporated college or university, having a law department organized, with competent instructors and professors, in which instruction is regularly given. It must have a prescribed course of instruction, its school year must consist of not less than 32 school weeks, exclusive of vacations, in which not less than an ag. gregate of 384 hours of attendance upon law lectures or recitations of such prescribed course, to be given or conducted by regular members of the faculty, are required. In addition, the affidavit of the law student and the certificate of the faculty must show that the applicant was in satisfactory attendance upon and successfully completed the prescribed course of attendance during the time he claims credit for.
Such a provision, inserted in the standard rules, would effectually settle the night and correspondence law school problem.
We have but one other suggestion. The New York State Bar Association adopted the Code of Ethics formulated by the American Bar Association, and it recommended that the New York Court of Appeals amend its rules regulating admission to the bar by requiring each applicant for admission to practice to state in the affidavit filed by him on his application that he has read the Canons of Professional Ethics adopted by the New York State Bar Association, and has faithfully endeavored to make himself acquainted with the same, and that he will endeavor to conform his professional conduct thereto.
The court has the amendment under consideration. Such a rule, if there is any virtue in these times, will compel the reading and study of the Canons of Ethics, and force the knowledge of their existence and moral obligations upon every applicant for admission, many of whom might otherwise ignore them. It is a requirement which must be productive of good. In addition, the State Bar Association requested the State Board of Law Examiners to examine on said Canons of Professional Ethics all applicants applying to it for admission to the bar, and that the faculties of all the law schools within the state be requested to teach the subject of professional ethics.
The Bar Examiners have complied with the above request, and it is gratifying to know how much good the requirement has accomplished. Applicants to whom the subject of professional ethics was a sealed book or in the clouds are now seriously reading, studying, and memorizing the Canons. Their answers to questions thereon are interesting and instructive- somewhat highflown and sophomoric, but nevertheless they have the true ring and all the appearances of sincerity. We strongly recommend that similar conditions be placed in the Standard Rules.
There is a practical side to the matter of obtaining the enactment of rules regulating admission to the bar which should be considered. There is always more or less difficulty and opposition, and it generally takes years to accomplish results. That may be due to the fact that in most states it is a legislative or political, and not a judicial, function, and that many country politicians have hopes of eventually becoming lawyers, and do not wish the gates to be closed by requirements which they cannot meet, or perhaps it is because the legislator has a tender spot in his heart for the “poor lad” who may be foreclosed, or because he himself, having been admitted under the old conditions, does not realize the necessity of advancing the requirements, or because he believes that every man admitted will find his level, or because there is always room at the top, or because he fears his constituents, with whom lawyers are not always popular, may think that the proposed rules are giving them special privileges. Doctors, dentists, horse doctors, horseshoers, and the like can obtain all the protection they ask for; but it is difficult to procure legislation raising conditions for admission to the bar, and for that reason too much should not be demanded at the outset. The law schools should not endeavor to control the situation, and should be reasonably content to be in advance of the state rules, and require for their degrees even higher standards than the rules, which should never exceed in their requirements more than the average intelligence of the community will stand for. fully endeavored to make himself acquainted with the same, and that he will endeavor to conform his professional conduct thereto, and that the examiners be requested to examine on said Canons of Professional Ethics all applicants applying to it for admission to the bar, and that the faculties of all law schools within the state be requested to teach the subject of professional ethics.
If the law hopes to maintain its ancient supremacy as the first and the learned profession it has a task before it. We are not pessimistic; but it is fast losing its prestige by reason of the adoption by medicine and other professions of higher educational and professional requirements for entrance thereto, and the consequent inflow to the bar of those who cannot aspire to medicine or the other regulated professions, and who find the law cheap and easy.
Admission to the bar should for many obvious reasons represent some cost, as well as sacrifice in time, service, and study.
We believe that proper rules regulating admission to the bar, honestly enforced and containing the conditions above set forth, will commend themselves to the people as well as to the profession, be of great public service, tend to elevate the standards of education and morality at the bar, restore to it its primacy, and be a monument to the intelligent section of the American Bar Association which formulated them and aided in their adoption.
In New York graduates of colleges and universities are admitted to the bar examinations after two years of law study. That time is entirely too short, and the answer papers of the two-year men demonstrate it. We do not approve of the one-year discrimination in favor of college graduates over those who are not, and the results of the examinations afford no reason for the same. Public opinion will not consent that the pe. riod of law study of noncollege graduates be raised to four years, in order that the collegiates may be compelled to study for three years, or in aid of three-year law school courses. We are confronted with a condition, and not a theory. Two years of law study is too short for any person, and as we cannot get four years for nongraduates we advocate the abolition of the discrimination against them, and think that all alike should be compelled to study law not less than three years. We are not quarreling with any theories predicated on the greater age and mental activity and receptivity of college graduates. We contend that two years of law study is not sufficient properly to qualify any person for the bar.
There should be an entire separation of the law school and the state in the matter of admission to the bar, and no attempt should be made to conform state rules in relation thereto to the business or educational interests of the law schools.
We think that the Standard Rules should contain among others the following conditions:
(a) That every candidate for admission to the bar should be a citizen of the United States.
(b) That he should have at least a high school education or its equivalent, as defined by state, educational authority, before he begins the study of the law.
(c) That no candidate should be admitted to the bar examinations unless he had studied law in the prescribed manner for not less than three years, two of which must be spent in good and regular attendance upon, and the successful completion of, the prescribed course of study at a proper law school, and one year in the service of a bona fide clerkship in the law office of a practicing attorney in the state.
(d) That law schools whose time is allowable under the rules should meet the requirements heretofore stated and as set forth in the rules regulating admission to the bar in New York.
(e) That no candidate be certified for admission who does not successfully pass a special examination in pleading, practice, and evidence.
(f) That each applicant for admission be required to state in the affidavit filed by him on his application that he has read the Canons of Professional Ethics adopted in the state, or in lieu thereof those adopted by the American Bar Association, and has faith
JAMES PARKER HALL, Dean of University of Chicago Law School, followed Judge Danaher with a paper entitled "THE STUDY OF LAW BY CORRESPONDENCE." Mr. Hall said:
During the past twenty years correspondence study of all kinds has increased in this country by leaps and bounds. Long regarded with suspicion by institutions of higher education, correspondence courses are now offered in a large number of subjects by seve eral prominent American universities, and a much larger number of students are en. rolled in private correspondence schools. A great variety of subjects are taught in this way, many of them very well taught indeed. The work appeals to a class of students whose attitude toward their education can scarcely be improved. They are earnest, ambitious, hard-working men and women, more mature in years than the average college student, and vastly more mature in the sober experiences and responsibilities of life. They labor under the handicap, for the most part, of devoting their best energies to some thing else before they can find time for their study; but their eagerness to make the most of their opportunities does much to offset this. Students who have done academic work by correspondence at the University of Chicago, and, with this to their credit, have entered the University and pursued resident work, have, on the average, done better in such resident work than have students who have entered the University with advanced standing from other approved colleges. This may not be interpreted, of course, to mean that correspondence work is superior to resident work, for undeniably the very best students are those who have spent the full time in residence; but it indicates the superior diligence and enthusiasm of the correspondence student.
The genuine value of much of the work done by correspondence is beyond successful dispute. The imagination is inspired by the possibilities of work of this character, open to any one of sufficient preliminary education and a little leisure, and reaching thousands who may never hope to attend resident schools after they can earn their own living. One would be glad to believe that home study could open all the doors of opportunity; but unhappily this is not true. As with many other ideas of genuine merit, the principle of correspondence study has been exploited for gain in fields where it is of little value. People are told that they can learn to draw cartoons, that they can learn to write advertisements, that they can learn to sell real estate, and that they can become lawyers-all by mail. They are not told that they can become doctors and dentists and pharmacists in this way, because our states some years ago decided that it was unwise to intrust the bodies of their citizens to practitioners not trained in appropriate professional schools. Some day they will regard men's property and rights as worthy of similar protection. Until then correspondence schools of law and of pianoplaying will flourish.
Correspondence law schools direct their appeal to two classes of persons: (1) Those who wish to acquire some knowledge of law for purposes of business or of general information; and (2) those who wish to become practicing lawyers. Concerning the first class I have nothing to say, except that frequently the books required to be bought are not well adapted to their ostensible purpose. As regards the correspondence study of law, conducted under the representation that this is an adequate method of preparing for practice, one can only say that it is a fraud, quite comparable with the bogus claims of many patent medicines and get-rich-quick schemes. One or two correspondence schools state that their work is not intended as a substitute for that of a resident law school, and that they offer it only to students who cannot possibly attend the latter. This position can be criticised only in so far as it leads prospective students to believe that correspondence work is an adequate, although Inferior, method of preparing for the
bar. Most correspondence schools, however, make no such modest claims. I quote a paragraph from the circular letter sent to inquiring students by one of the most pretentious of these schools:
"Combining, as we do, the most able faculty, together with the best series of textbooks ever written, we believe that we are fully justified in our claim that the instructions issued by this institute are far superior to those offered by any other correspondence school, and the equal of any of the larger resident law schools."
It appears that the able faculty, as well as the text-books, are written. Is this a cryptic intimation that both exist upon paper? Then follows an offer to cut the regular tuition fee for the complete three-year course from $200 to $75, which is apologetically explained as being necessary to cover the cost of books—the instruction being absolutely free. The books, it should be said, are published by the same concern in another one of its Protean forms. Doubtless the accomplished dean of this "most able faculty" would be the first to repudiate such representations; but what is a dean, that he should think of controlling the advertising department?
Why is it that a correspondence law school cannot really do anything like as good work as a resident law school, and what do the present correspondence law schools really do for their students ? An adequate professional training for law requires far more than the reading of text-books, however excellent. It should compel the student to think, carefully, frequently, and steadily, in the face of controversy, about a great variety of legal problems that are to be solved by the application of legal principles; and it should also train him to use law books, and to weigh, compare, and distinguish precedents, just as a lawyer must do. Theoretically, it would perhaps be possible to do the dialectic part of the work by mail, provided that teacher and pupil were both tireless correspondents; but no such instruction could be carried on by circular form letters, designed to answer supposed typical difficulties, and so few students could be handled by a single instructor in this way that it would be quite impracticable as a commercial proposition. Even thus, the student could not gain the necessary familiarity with law books at large, and an experience in dealing with precedents to establish or controvert legal propositions.
In fact, what he may get from the correspondence law school is a set of books dealing in a dull, inaccurate, and insufficient way with the principal topics of the law, the profit on which forms a substantial part of the school's income. Sometimes the school seems to have been started largely to sell the books. In one instance the unannotated text of a large law encyclopedia is used; an excellent work for lawyers, but of