CHAPTER II

THE LAWYER'S QUALIFICATIONS

SECTION 1.—EDUCATION, KNOWLEDGE, AND SKILL

In re BERGERON.

(Supreme Judicial Court of Massachusetts, Suffolk, 1915. 220 Mass. 472, 107 N. E. 1007.)

Petition by Emile F. Bergeron for an examination for admission to the bar. Ordered that petitioner be not entitled to take the examination as to his legal qualifications until he has passed an examination as to his general education.

RUGG, C. J. * The question thus presented in its broader aspects is whether any qualification in general education reasonably can be required as a prerequisite for admission to the bar. The natural impulse of any believer in a republican form of government is that no barrier ought to be raised against any individual engaging in any pursuit. Unrestricted freedom of choice and absolute equality of opportunity in every employment are elementary principles. Hence, at first sight any restrictions seem contrary to the spirit of our Constitution. But it is apparent that there are limitations imposed by the nature of things which cannot be ignored nor overleaped. The ignorant cannot undertake a handicraft without training. Statutes in recent years as to plumbers, pharmacists and many branches of the civil service furnish numerous illustrations of the recognition of this principle. The passing of an examination by teachers in the public schools has been required for many years. The principle of preliminary examinations is thus thoroughly established as well by legislative recognition as in reason. Its proper scope is only the matter to be determined. On that point it becomes necessary to consider somewhat closely the duties of an attorney at law. He is in a sense an officer of the state. From early days he has been required to take and subscribe an "oath of office" which forbids him from promoting and even from wittingly consenting to any false, groundless or unlawful suit, from doing or permitting to be done any falsehood in court, and which binds him to the highest fidelity to the courts as well as to his clients. The courts being a department of government, this is but another way of saying that his obligation to the public is no less significant than that to the client. He is held out by the commonwealth as one worthy of trust and confidence in matters pertaining to the law.

Of course no one can know all law. But every attorney ought to possess learning sufficient to enable him either to ascertain the law or to determine his limitations in that regard for the purpose of giving safe advice. It is impracticable to attempt to name the matters about which he may be asked to act. Stated comprehensively they include the liberty, the property, the happiness, the character and the life of any citizen or alien. They touch the deepest and most precious concerns of men, women and children. The occasions which lead one to seek the assistance of a lawyer often are emergencies in that person's experience which prevent the exercise of critical discernment in selecting a counsellor. They involve the utmost trust and confidence. In proportion as the client is poor, ignorant or helpless, and hence less likely to be able to exercise judgment in making choice, the necessity of adequate learning and purity of character on the part of every lawyer increases in importance. Thus the interest of the public in the intelligence and learning of the bar is most vital. Manifestly the practice of the law is not a craft, nor trade, nor commerce. It is a profession whose main purpose is to aid in the doing of justice according to law between the state and the individual, and between man and man. Its members are not and ought not to be hired servants of their clients. They are independent officers of the court, owing a duty as well to the public as to private interests. No one not possessing a considerable degree of general education and intelligence can perform this kind of service. Elemental conditions and essential facts as to the practice of law must be recognized in the standards to be observed in admission to the bar.

The right of any person to engage in the practice of the law is slight in comparison with the need of protecting the public against the incompetent. The propriety of requiring some educational qualifications as a prerequisite for admission to the bar seems plain. The exact extent of general education to be required is a matter about which opinions may differ. *

*

The rule here assailed requires something less in substance than the equivalent of an education in the average high school, as we understand it.

* *

The educational requirement does not seem unduly severe. It is urged that it is a requirement which many men who have achieved. signal success in the practice of the law could not have met at the time they were admitted to the bar. Doubtless that is true. But requirements which could not have been complied with in remote districts, where facilities for the acquisition of knowledge and general instruction were scanty, hardly can be regarded as a universal

1 In Montriou v. Jefferys, 2 Car. & P. 113, 116 (1825) Abbott, C. J., made the often-quoted statement that: "No attorney is bound to know all the law; God forbid that it should be imagined that an attorney, or a counsel, or even a judge is bound to know all the law; or that an attorney is to lose his fair recompense on account of an error, being such an error as a cautious man might fall into."

standard for other times and places. In this commonwealth, where there is a free public library in every city and town with a single exception and where every family is within reach of a free public library, where the compulsory school age is high and where provision for learning by day and evening schools is ample, the educational requirement of the rule is not beyond the reasonable reach of those possessing the native ability, the energy and the perseverance necessary to enable them to render moderately valuable service to the public as attorneys. * * * Even if it should happen in rare instances that one who could be a useful attorney should be excluded, that is on the whole far better than to have the public harmed and clients subject to injury which would be irreparable by the admission of considerable numbers of those who are deficient in education and incapable in fact. There must be a general rule. Almost every general rule of municipal or natural law in some instances appears to work a hardship upon an individual. The law of gravitation acts indifferently upon the just and the unjust. *

In view of all these considerations we are satisfied that the rule is not unreasonable and that the petitioner is not entitled to take the examination as to his legal qualifications until he has passed an examination as to his general education.

So ordered.2

ABRAHAM LINCOLN'S OPINION OF COLLEGE-TRAINED LAWYERS: Abraham Lincoln has been used so often as an argument against the need of a thorough preliminary education and careful legal training as a prerequisite to admission to the bar that his remarks about college trained lawyers ought to be quoted in a book such as this.

Lincoln had gone to Cincinnati in 1855 expecting to make an argument for the defendants in the case of McCormick v. John M. Manny & Co., but the client had arranged for Mr. Edwin M. Stanton. and Mr. George Harding to make the argument. Mr. Ralph Emer

"If there be any profession which imperiously requires, but at the same time richly repays, the acquisition of a thoroughly sound, practical, liberal education, it is that of the law. *"-Samuel Warren, The Moral, Social and Professional Duties of Attorneys and Solicitors (1870 Amer. Ed.) p. 51.

"A candidate for the bar is not deemed qualified to begin his legal studies of three years unless and until he is shown to have a satisfactory education as a foundation for them. Otherwise the seeds of legal learning are sown on a barren soil.”—Parker, J., in In re K—, 88 N. J. Law, 157, 158, 98 Atl. 668, 669 (1915).

3 Writers are far from agreeing as to Lincoln's treatment by Mr. Edwin M. Stanton and Mr. George Harding when they all were engaged in the defense of the case of McCormick v. Manny, in which McCormick claimed infringement of reaping machine patents. Miss Tarbell, in her Life of Lincoln, vol. 1, pp. 260-266, relies on the statements of Mr. George Harding to her and of Mr. Ralph Emerson in his pamphlet on the case. These statements show

son, of Rockford, Illinois, reports that Lincoln became satisfied with the arrangements as the trial progressed, for he found that he had not studied the case sufficiently. After Stanton's closing argument, Lincoln asked Mr. Emerson to take a walk, and Mr. Emerson states: "For block after block he walked rapidly forward not saying a word, evidently deeply dejected.

"At last he turned suddenly to me, exclaiming, 'Emerson, I am going home.' A pause. 'I am going home to study law.'

"Why,' I exclaimed, 'Mr. Lincoln, you stand at the head of the bar in Illinois now. What are you talking about?'

"Ah, yes,' he said, 'I do occupy a good position there, and I think that I can get along with the way things are done there now. But these college-trained men, who have devoted their whole lives to study, are coming West, don't you see? And they study their cases. as we never do. They have got as far as Cincinnati now. They will soon be in Illinois.' Another long pause; then stopping and turning toward me, his countenance suddenly assuming that look of strong determination which those who knew him best sometimes saw upon

that the defendant Manny had given one P. H. Watson, who had procured Manny's patents, the entire control of the defendant's case; that Watson employed Harding, a patent lawyer, to argue the question of mechanics before the court, and, in accordance with the custom of the time to "have counsel not specially familiar with mechanical questions" argue patent cases, engaged Stanton to make the closing argument; that Watson retained Lincoln, so that Lincoln might argue in Stanton's place, if Stanton should be unable for any cause to make the argument, but did not tell Lincoln that Stanton was to make the argument, if possible, until after Lincoln arrived at Cincinnati for the trial; that, however, it was Watson's, and not Stanton's, decision, that Stanton should make the argument; and that Lincoln afterwards was glad that Stanton, and not Lincoln, had made the closing speech. Mr. John T. Richards, however, in his Abraham Lincoln, the Lawyer-Statesman (1916) pp. 80-86, emphasizes the discourteous treatment of Mr. Lincoln by Stanton and Harding, to whom Lincoln's farmer clothes and awkwardness were worrisome, and relying on statements which in 1911 Mr. John T. Bigelow, at one time United States Minister to France, told Mr. Richards that "many years before" Mr. Harding had made to Mr. Bigelow, concludes that Mr. Harding's statement to Miss Tarbell was disingenuous, and that Stanton and Harding deliberately set about preventing Lincoln from making an argument. As for Mr. Emerson's independent statement, which in part corroborates Mr. Harding's statement to Miss Tarbell, Mr. Richards concludes "that Mr. Emerson did not remember clearly the events of 1855 of which, in 1909, he undertook to give an account [in pamphlet form] after the lapse of so many years." Mr. John T. Richards, Lincoln, the Lawyer-Statesman (1916) p. 85. As Mr. Harding's statement to Miss Tarbell shows that the three lawyers could have argued for the defendant only by consenting that Mr. E. N. Dickerson, the patent lawyer of the two engaged for the plaintiff, should make two arguments, instead of only one, that there were sound tactical reasons against the giving of the consent, since it would enable Mr. Dickerson to argue the mechanical part of the case after Mr. Harding's argument, and when Stanton and Lincoln, who were not prepared to handle the mechanics of the case, would be handicapped in replying, and that Mr. Watson, as was natural at that time, clearly preferred Mr. Stanton to Mr. Lincoln for the argument, if only one of them could be heard, it seems fair to acquit Mr. Stanton and Mr. Harding of everything except snobbishness and personal discourtesy.

his face, he exclaimed, 'I am going home to study law. I am as good as any of them, and when they get out to Illinois, I will be ready for them.'

PALMER v. BOYER.

(Court of King's Bench, 1594. Cro. Eliz. 342.)

Action for words. That he being a counsellor at law, and steward to J. S. of his manors, the defendant said of him, "He is a paltry lawyer, and hath as much law as a jack-an-ape." Upon not guilty pleaded, it was found against him, and damages twenty pounds. And it was moved that the action lieth not; for it is not said, he had "no more law than a jack-an-ape.”—But it was adjudged for the plaintiff; for the words are scandalous, and touch him in his profession."

CITIZENS' LOAN, FUND & SAVINGS ASS'N OF BLOOMINGTON v. FRIEDLEY et al.

(Supreme Court of Indiana, 1890. 123 Ind. 143, 23 N. E. 1075, 7 L. R. A. 669, 18 Am. St. Rep. 320.)

MITCHELL, C. J. This suit was instituted by the Citizens' Loan, Fund & Savings Association against Harmon H. Friedley, and the sureties on his bond, to recover money alleged to have been lost to the loan association on account of the negligence and want of skill of the defendant Friedley while acting as the attorney of the association. It is averred that the association made a loan of $400 to one of its shareholders in August, 1883, upon the faith of advice given by the appellee, its attorney, who certified to its officers, in

4 Quoted in Ida M. Tarbell's Life of Lincoln (1909) vol. 1, p. 266. While the foregoing story seems to ring true in substance and has so good a moral that it ought to be accepted, it has been doubted. Mr. John T. Richards in his Abraham Lincoln, the Lawyer-Statesman (1916) pp. 84, 85, says that "in the face of the fact that many of the lawyers who were then practicing law in central Illinois were college-bred men, it does not seem possible that Mr. Emerson's recollection is correct as to what Mr. Lincoln said to him," and that it is "probable that, if the statement attributed to him by Mr. Emerson was made, it was in a spirit of jest, or that it was uttered because of the attitude of superiority which Messrs. Stanton and Harding had displayed toward him."

"The conditions precedent to a lawyer's success are severe. He must acquire sound learning; he must be trained to clear thinking and to simple and direct expression; he must be both intellectually and morally honest; and he must have the quality of loyalty to every cause in which he enlists. He should have the tact which comes from real sympathy with his fellow men, and he will be far better for the saving grace of sense of humor, which brings with it sense of proportion and good judgment."-Elihu Root, Some Duties of American Lawyers to American Law, 14 Yale Law Journal, 63. 5 On imputations upon lawyers as libel or slander, see note in Ann. Cas. 1912A, 376.

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