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Present Conditions of the Bar

From the Recent Report of Committee on Admissions of the New York County

Lauyers' Association

TO

O PROVIDE remedies by altering ing these, we must resort to measures of

or amending the rules of admission, discipline. As to the future, however, we must ascertain with certainty what we can prescribe and demand the applithe existing evils are. It is equally cation of such intellectual and moral tests necessary that we should have a clear as will insure a better class of practitionunderstanding of the nature and fun ers. The door should not be opened for tions of the office of a lawyer. It seems admission until we are sure that those to us that, from whatever standpoint the who wish to pass through are equipped subject is approached, a conviction is in- with such knowledge as enables them, evitable that under the present rules of at least fairly, to comprehend the office the courts, and the existing systems of which they aspire to fill and the elements legal education, a class of lawyers is pro- of the law which they are expected to duced inadequate in legal and moral edu- apply. cation and training to meet the require- An analysis of fundamental evils ments of the office which they undertake which at present infect the profession to fill. The formation of this Society is shows: a striking confirmation of this view, and First. That the average student, when constitutes the strongest protest against he applies for admission, has no, or a existing conditions. It is the united voice very inadequate, knowledge of his variof the Bar, crying for deep, wide, and ous duties. thorough reform.

These duties are fourfold: First, to Where the intellectual and moral the state as an officer and citizen ; secstandards for the Bar are low, it inevita- ond, to the court as an officer and advisbly follows that the administration of er; third, to his client as a fiduciary; justice will be uncertain and deficient. and, fourth, to his brother lawyers, out An inferior order of lawyers creates an of which grows the "esprit de corps” of inferior quality of justice. This breeds the profession-an indefinable code of contempt for both.

honor, courtesy, and respect, varying or As Burke well said: "The degree of enlarging to meet the requirements of estimation in which any profession is each case and epoch. He owes loyalty to held becomes the standard of the estima- the state, both as a citizen and as a sworn tion in which the professors hold them- officer of justice; he owes respect and selves.”

dignity in his deportment to the courts, With those already in the profession, and candor and honesty in his statements the Committee does not undertake to and dealings with them; to his client he deal. After admission to the Bar, abso- owes his talents, his knowledge, his time, lute regeneration of the lawyer is im- and his fidelity; and in dealing with his possible. We hope to influence him by brother lawyers he should be controlled clear rules of professional ethics. Fail- by a proper esprit de corps.

in this respect.

The lawyer cannot perform his duty

students under the existing systems are to one of these parties and neglect the not taught to analyze their true relations others; he cannot be honest to the state and dishonest to the court and his client, Second. The student is not instructed any more than he can be dishonest to the in the real nature and functions of his state and court and honest to his client. office. But his duty can be performed to all Perhaps he understands vaguely that without infringing or impairing the he is an “officer of the court," but that rights of the others.

only conveys to his mind the idea that In every employment which the law- the courts may, therefore, summarily yer receives, his primary duty is to the reprimand, degrade, or punish him. But state. In performing this duty, he can he is not taught that in general he is an fulfill all of his obligațions to clients and officer of the court, to advise the courtcourts with fidelity and honor. If he at- in many instances to assist it; that in tempts to go beyond this, he strikes a truth he is a real official friend of the blow at society. Why? Because he is a court; that the court has always the part of the judicial system of the gov- right to call upon him to aid in the adernment. He is appointed to conduct ju- ministration of justice. The fact that no dicial proceedings. If a conflict arise attention is paid to these fundamental between his duty to the government and principles in the education of the lawyer his client, in which the position of the has gradually tended to divorce the lawstate in its whole corporate capacity is yers from the courts. They hold each clear (not a mere question of law, ap- other at arm's length, until the courts plicable to both, or a question of the have grown suspicious of the Bar, and rights of the citizens, which is in fact regard its practitioners as constantly the interest of the state itself), he must endeavoring to wrest from the judicial decide in favor of the former; for the tribunals orders, judgments, and decrees interest of that client is subordinate to to which they are not entitled; to regard the interests of all the other citizens- them as purely mercenary, pitiless advoconstituting the state—who are interest- cates, careless of everything except suced in maintaining the entire integrity cess. And, unfortunately, there is ground of the political system. His oath to main- for this suspicion and belief. tain the laws cannot be performed by While, as an auxiliary of the court, the giving advice, or resorting to acts, which lawyer's vocation has been greatly encause their violation. Of course, he feebled, he is still an officer of very great should not prejudge, and in cases of authority and power. doubt he is free to act as his conscience At the instance of a client, he becomes dictates—honest doubt as to the law, or the official author and creator of all judihonest doubt as to the facts.

cial proceedings. He is the fountain The tendency of the lawyer, in modern head of legal procedure, at whose comtimes, is to look to, and think of, nothing mand all legal processes flow. but the client's interests, and the ques, The lawyer's mandate—the summons, tion as to how far his professional con- writ, or by whatever name the original duct affects the administration of justice, process may be called-compels the apand the general salutary conditions of the pearance in court of the highest or lowlistate, is almost lost sight of; indeed, est individual in the land.

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Apart from suitors themselves—who are permitted to appear in their own cases—no judicial action can be put in motion without the sanction of some lawyer. He is the sole officer authorized to cause civil action to be begun. If the lawyer approves the client's demand, he can issue, or cause to be issued, process which will bring any individual or corporation before the court. The demand may be unfounded, the action unjustified, the whole proceeding utterly without merit, in law or in fact, yet the defendant must obey. A lawyer, the day after he is admitted, the veriest tyro in the profession, may, without a title of justice or right, summon the worthiest and pur

est individual to answer the demands of a professional blackmailer; and although, after years, it may be, of litigation, in which character, property, and expense are involved, the suit is dismissed as unfounded, yet the lawyer sits serenely in his office, secure from liability, exempted from acts which often, through his negligence or design, have caused untold mischief and damage. His ordinary mistakes of law, or judgment, cannot be made the basis of a legal demand against him. How many of such mistakes are made, how many causeless actions are instituted, can be easily seen by consulting the records of the courts, which show the number of suits finally dismissed.

A Recent North Carolina Bar Examination

Fifty-three candidates took this examination. Thirty-four passed, and nineteen

failed to pass.

CRIMINAL LAW

7. Into how many general classes are crimes divided in this state, and what is the dividing line between the classes?

8. Can a verdict in a criminal action be received in the absence of the defendant ?

9. Is an indictment valid which omits both to allege any time or place at which the offeuse was committed ?

10. What proof is necessary to excuse a person from criminal liability on the ground of insanity?

CONSTITUTIONAL LAW 1. Is the Constitution of the United States one of granted and enumerated powers, or one of limitations of powers?

2. Does any provision in the Constitution of the United States or of this State confer any express power upon the courts to hold a statute unconstitutional? If so, quote the provision.

3. Is the state Constitution one of limitations or of granted powers as to the legislative department? How is this as to the executive and judicial departments?

4. Can the Legislature repeal the charter of a railroad company? Can it alter such charter without the consent of the company?

5. What is the restriction imposed by the ('onstitution upon the General Assembly as to the method to be observed in passing laws to raise money and to impose taxes or to allow the counties, cities, and towns to do so?

6. May the courts in any case by mandamus, direct the Public Treasurer to pay an admittedly valid indebtedness of the state when there is no existing act of the Legislature directing payment? Const. art. 14, $ 3.

REAL PROPERTY

11. What is the distinction between the quantity and the quality of an estate?

12. If a tenant of realty per auter vie die before the cestui que vie, what does his interest become, and to whom does it go?

13. Is the widow of a mortgagor entitled to dower out of the mortgaged premises?

14. Will a widow be compelled to elect between dower and a provision made for her in her husband's will; if so, when?

PERSONAL PROPERTY

TORTS

15. Has the writer of a letter such property in it that he is entitled to an injunction to restrain its publication by the person to whom it is addressed or by others who have acquired possession of it?

16. Is a patent right assignable, and is it subject to sale under execution?

17. Name the several modes in which the title to personal property is transferred by operation of law.

18. In what cases will the recovery of judgment effect a change of title in personalty?

EQUITY

35. What is the statute of limitations as to an action for tort?

36. Is a parent liable in a civil action for the torts of his infant children? Are the infants liable civilly?

37. In an action for an injury sustained by failure to adopt appliances required by law, is contributory pegligence a defense?

38. In an action for injury to an emploré in a cotton mill, when the employé is under the age prescribed by statute, can the defendant set up contributory negligence or not? Give the reason.

CORPORATIONS

19. What are the principal cases in which equity grants relief, as stated by Lord Coke?

20. Define fraud, as it is employed in courts of equity.

21. Are there any cases of fraud against which equity will afford no relief?

22. Give some instances of constructive frauds against which equity will grant relief.

23. What is the rule in equity as to granting relief in case of mistakes in will, and is evidence of matters dehors the will to show mistake admissible?

24. Has a court of equity jurisdiction as to public officials exercising public trusts or functions ?

39. Is notice to a director notice to the corporation ?

40. What is necessary in order to bind a corporation by specialty ?

41. Can a corporation chartered in another state exercise its franchises in this state if the comity to do so is withdrawn by the Legislature here?

42. Is a corporation indictable for a crime in which the intent is an essential element?

43. To whom do the lands and tenements of a corporation go upon its dissolution? How was it at common law ?

44. What is a quasi public corporation? Give instances of different kinds.

NEGOTIABLE PAPER

EVIDENCE

25. What are the requirements of negotiable instruments under our statute?

26. Is there any case in which the purchaser of a negotiable note, with knowledge of the equities between the original parties, will acquire title to it free from such equities?

27. What constitutes a "holder in due course" under our statute, and what are his rights?

28. What is the effect, if any, of including in a note or bill of exchange that it be paid out of a certain fund?

45. When one party to a transaction is dead, under what circumstances is the sur. vivor a competent witness in regard thereto?

46. How do you determine whether a presumption is one of law or one of fact?

47. In actions for a tort, are the admissions of one defendant competent against his codefendant, when the act was committed by them jointly?

48. What is the distinction between judicial confessions and extrajudicial confessions ?

49. What is the distinction between a patent and latent ambiguity, and is parol testimony competent?

50. Can the acknowledgment in a deed of the receipt of the purchase money be contradicted by parol?

CONTRACTS 29. Can a person who enters into a contract the day before his twenty-first birthday avoid it or not by pleading infancy, and the reason?

30. Can a contract under seal be impeached for want of a sufficient consideration?

31. In what cases is a total want of consideration a perfect defense in an action upon a contract, and when is it not?

32. What, if any, contracts bear compound interest?

33. If A., for a nominal consideration, agrees to convey valuable property to B., can the latter recover in an action for breach of the contract?

34. Are there any exceptions to the rule that a contract valid where it is made is valid everywhere?

HOMESTEAD 51. Does the homestead exemption con. tinue after the death of the homesteader for the benefit of the widow ? If so, in what cases and how long?

52. Under our statute, if the allotted homestead is conveyed, does it become at once liable to sale under judgments docketed prior to the conveyance? And is one who has conveyed away his homestead entitled to have another allotted?

DOMESTIC RELATIONS 53. Is a husband liable in damages for his wife's torts? Is she liable?

54. Is there any restriction in our statutes upon the right of a married woman to contract with the assent of her husband ? In what cases may she contract without his assent?

ply for it, who can issue it, who can serve it, and what is the procedure?

60. What is the procedure prescribed for "settling" a "case on appeal"?

61. In what cases must a guardian ad litem be appointed, and in what mode is this done?

62. Name the pleadings required under the Code, and when must they each be filed ?

63. State the jurisdiction, civil and criminal, of each of the different courts—Supreme, superior, clerk, probate, recorder, and justice of the peace.

64. Xame the ancillary remedies, and state what purpose each serves.

PLEADING AND PRACTICE

55. In what cases may a married woman bring an action without joining her husband ?

56. What is a bill of particulars, and in what cases may the judge order it to be furnished? And does the statute apply to criminal as well as civil actions?

57. How must pleadings be construed at common law ? and under the Code?

58. When must a pleading be verified, and how?

59. In what cases will the writ of habeas corpus be refused an applicant, who may ap

WILLS 65. Can a married woman dispose of both her real and personal property, or either, by will without the assent of her husband?

66. Name the different kinds of wills and the requirements as to the valid execution of each.

Notes and Personals

In delivering a lecture recently before the students of the University of Indiana Law School, Hon. Roscoe Kiper, judge of the Warrick and Spencer circuit court of Indiana, said in part:

"It is the duty of every lawyer to aid in the enactment of wholesome laws. During the last few years our system of jurisprudence has run the gauntlet of Legislatures and organic conventions with the cry of reform sounding at its heels. To an extent not dreamed of, the people have taken the remodeling of the whole body of the law into their own hands. The age has gone by when the opinion will be tolerated that the end to be sought by a system of jurisprudence is the establishment of an abstruse science. It is now demanded that the prime object of the law shall be to meet out speedy and exact justice between man and man, that judges shall disregard technicalities and make forms yield to substance in determining the merits of controversies, that precedents which have outlived the occasion that originated them shall not obstruct the current of equity, that rules which have survived the reason on which they are based shall give place to others formed on the enlightened wants of our own times, and that causes shall be dismissed from the courts as rapidly as the substantial interests of the parties will permit.

"The Legislature being the enacting power of our state, to whom is delegated the authority to formulate laws, it must necessarily follow that the wholesomeness and practicability of our own laws must depend on the kind of men who compose that august body. It is a remarkable inconsistency in our system of government that in all our occupations, art, or science some method of instruction is required to fit one for

his calling, except only the science of legislation. For the minister, the physician, or lawyer a long course of reading and preparation is necessary, but ordinarily the man who becomes distinguished as an adept in precinct politics, or who has been disappointed in his application for the post office, is seized upon as a possible candidate for the Legislature, without any regard for his mental qualifications. The result is that a very large part of our statute books consists of freak legislation, embodying the theoretical nostrums for social ills of every village wiseacre who can get a seat in the Legislature. Man will reflect his environment, and the member of our own Legislature from one of the counties bordering on the Ohio, who introduced a measure to provide a bonus for each night owl destroyed, clearly reflected his surroundings. Chief Justice Cockburn once remarked that he never took down an act of Parliament 'without a shudder,' and I presume members of our judiciary likewise shudder when required to give meaning and force to some of the anomalous ambiguities embodied in the reports of our own Legislature--for instance, the drainage act, or the rock road law, or the act conferring judicial authorities on town clerks. Inconsiderate legislation comes with double force against the courts, which are required to bring order out of chaos and give life and reason to statutes that most vaguely disclose their intention, or which are repugnant to the well-founded principles of our jurisprudence. The court must stand between the drastic innovations demanded by inflamed legislators and the conservatism of adherence to precedent, and define, discriminate, and construe wholesome rules of law that will equally uphold the majesty of the law and yet insure the citizen the preservation of his right and protection. The people have the same right to demand proper qualifications of their legis

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