SOME SUGGESTIONS FOR STANDARD RULES FOR

ADMISSION TO THE BAR.

BY

FRANKLIN M. DANAHER,

OF ALBANY, NEW YORK.

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 premises.

Hon. William P. Goodelle of Syracuse, the President of the Board, and myself have been members of the same since its organization in 1895. We have passed upon the qualifications of and certified for admission to the Bar 12,275 candidates, and, allowing for re-examinations, we have read upwards of 20,000 sets of answer papers and a million answers. One applicant has twenty-one failures to his credit and he still comes up smiling. The Board has had before it all sorts and conditions of men, graduates from substantially every college in the civilized world, and from a greater part of the gymnasiums of Europe, and also representatives from every law school in America. It has had before it conditions arising from the new immigration, and problems that only the most cosmopolitan and polyglot city in the world could furnish. If in ancient times all roads led to Rome, New York City is its worthy successor in that regard today.

It has had to combat much fraud and chicanery in attempts to evade the restrictive features of the rules regulating admission to the Bar, but it has fought the good fight, and through the

storm and stress of battle, with the encouragement and aid of its Court of Appeals, New York has evolved a set of rules in that important matter which, though not perfect, represent the experiences of fifteen years and an honest and fearless determination to uplift conditions at the Bar and to increase its moral and intellectual standards.

The subject under consideration is too vast for an argumentative paper on this occasion, so we do but suggest.

By reasons of differences in local conditons, 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 shall 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 encouragement 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 law 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 equivalent, 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 show 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

of even 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 conditions 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 illy fitted to enter upon the practice of his profession. We assume as admitted the necessity of some pre-educational qualification. In addition it has this practical merit-it will be a discourager and will prevent many uneducated and inefficient persons from beginning the study of the law. The time and effort required to obtain after eighteen years of age a high school education, or its equivalent, will be almost prohibitive, and will certainly decrease the number of applicants and thus render competition at the Bar less deadly, tend to make the profession reasonably safe and sure as a means of livelihood, make it more honest and improve its conditions and general morale.

The proposed rules should also provide that all law clerkships must be bona fide, and actually served in the law office of a practising 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 are substantially the requirements 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 Hugh Alexander's intelligent and practical paper, entitled "Some Admission Requirements," read before the Section of Legal Education in 1905 (American Bar Association Reports, Vol. 28, p. 619), to which paper we wish to

acknowledge our indebtedness. We state with regret that some attorneys have very little conscience and regard for the interests of the profession in the matter of clerkships. Nominal or constructive clerkships are more numerous than one would suspect, and many who are engaged during business hours in political or other gainful occupations are serving, with the connivance of attorneys, law clerkships looking towards admission to the Bar. Such practices, in addition to being fraudulent and an imposition on the courts, are unfair to those who serve their law clerkships honestly, and bring into the profession many who otherwise would not even attempt to be admitted. The intent of the proposed rule is to limit the evil if possible.

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 practising attorney within the jurisdiction. We have, on occasions, spoken of the substantial impossibility of obtaining an education in the law under modern conditions of stenographers and typewriters and specialization now existing in law offices. We desire to explain our general statement. We mean that a student cannot obtain while serving a clerkship either a good or sufficient education in the law, but that does not necessarily mean that he can learn nothing of value while doing so. On the contrary, our experience is to the effect that those students who have been a year or more in an office show a familiarity with the language of the law, its technical terms, the meaning and use of the forms and procedure by which results are produced, and know more of practice, pleading and evidence than those who come before us, the exclusive product of the law schools; other things being equal they are better fitted to begin the practice of the law. The great majority of those who come to the Bar in New York have never served an hour of clerkship, and upwards of eighty per cent have had more or less law school training, and the deficiencies in pleading and practice of those who served no clerkship are appalling. We cannot state all that has come under our observation nor prove our assertion by

numerous citations from the answer papers of the many applicants, but a fair example of what we have in mind came to pass in our present June examination. We asked that an attestation clause to a will be drawn. That most important form which is in general use, and has to do with the proper execution of a will, was absolutely unheard of by the great majority of the law school applicants, and their answers thereto were sad to behold. 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.

The experience of every lawyer is that he never feels sure that he knows how to do a thing in practice until he has done it once, at least, no matter how learned he may be in the law of the subject matter, and that condition marks the limit in teaching, pleading and practice beyond which a law school cannot go. 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, serve a clerkship after admission, but the vast majority of such, without sense of responsibility, begin to practise 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. Conditions in the courts in New York a few years ago became alarming by reason of the ignorance of the junior Bar in pleading, practice and evidence. The Special Terms were clogged with motions arising out of