Requisite qualifications under the rules.

2. To entitle an applicant to an examination he must prove to the court, that he is a citizen of the United States, and that he is twenty-one years of age and a resident of the department within which the application is made, and that he has not been examined in any other department for admission to practice and been refused admission and license within three months immediately preceding, which proof may be by his own affidavit of the facts; that he is a person of good moral character, by the certificate of the attorneys with whom he has passed his clerkship, but which certificate shall not be deemed conclusive evidence, and the court must be satisfied on this point after a full examination and inquiry, that he has served the clerkship or pursued the substituted course of study prescribed by the rules, as requisite to an examination. The clerkship may be proved by the certificate of the attorneys with whom the same was served, or, in case of their death or removal from the State, by such other evidence as shall be satisfactory to the court.

The proof of any time of study, allowed as a substitute for any part of the clerkship required by these rules, shall be by the certificate of the teacher or president of the faculty, under whose instructions the person has studied, together with the affidavit of the applicant; the proof must be satisfactory to the presiding judge of the court, who alone shall make the order allowing a deduction from the regular term of clerkship by reason of such studies.

3. No person shall be admitted to examination as an attorney, solicitor or counselor, unless he shall have served a regular clerkship of three years in the office of a practicing attorney of the supreme court after the age of seventeen years.

4. It shall be the duty of the attorney with whom the clerkship shall be commenced, to file a certificate in the office of the clerk of the court of appeals, certifying that the person has commenced a clerkship with him, and the clerkship shall be deemed to have commenced on the day of the filing of the certificate. A copy of the certificate, certified by the clerk of the court of appeals, with the date of the filing thereof, shall be produced to the court at the time of an application for examination.

5. When a clerkship has already commenced, or shall have commenced before these rules shall take effect, the certificate required by the preceding rule, verified by the affidavit of the

Requisite qualifications under the rules.

attorney, stating the time of the actual commencement of such clerkship, may be filed at any time before the first day of November next.

6. It shall be the duty of an attorney to give to a clerk, when he shall leave his office, a certificate stating his moral character, the time of clerkship which he has passed with him, and the period which has been allowed him for vacation. Not more than three months shall be allowed for vacations in any year.

The term of clerkship will be computed by the calendar year, and any person applying for admission, whose period of clerkship shall expire during the term at which the application shall be made, will be admitted to examination at the customary day of the same term.

7. Any portion of time, not exceeding one year, actually spent in regular attendance upon the law lectures in the university of New York, Cambridge university, or the law school connected with Yale college, or a law school connected with any college or university of this State, having a department organized with competent professors and teachers, in which instruction in the science of law is regularly given, shall be allowed in lieu of an equal period of clerkship in the office of a practicing attorney of the supreme court.

8. Persons who have been admitted, and have practiced three years as attorneys in the highest court of law in another State, may be admitted without examination to practice as attorneys, solicitors and counselors in the courts of this State. But such persons must have become residents of this State before applying for admission, and must bring a letter of recommendation from one of the judges of the highest court of law in the State from which they came.

These rules of the court of appeals were adopted May 1, 1871, and it was provided by an additional rule (9), that they should take effect on the first day of June, 1871. Soon after their adoption the following amendments were made, whereby their operation was suspended until June 1, 1872: "As to persons who had been, during one year or more, immediately preceding the first day of May, 1871, engaged in the study of the law in the office of a practicing lawyer, or in any law school, or in the law department of any college or university, with the view of applying for admission to practice in the courts of this State," and providing "that the graduates of the university of the city of

Qualifications for actual practice.

New York, who shall have commenced their course of study in the law department of that university, at any time prior to May 1, 1872, shall, on complying with the requirements of chapter 187 of the laws of 1860, be entitled to admission upon the examination and in the manner provided in that act." See rules

of the court of appeals, under act of April 13, 1871, relating to admission of attorneys.

Section 7. Qualifications for actual practice. However proper and important it may be to prescribe rules for the admission of attorneys, and however strictly a compliance with them may be enforced upon applicants for examination, it should still be remembered that a mere literal compliance with the requirements of any set of rules, however stringent, will qualify no one for the arduous duties of actual practice.

A student need not expect to become qualified for admission to practice by a few months' casual and superficial reading. He must understand the old system before he can practice the new. He must master Blackstone, Cruise, Kent, Sugden, Comyn, Chitty, Starkie, Greenleaf, Story, and the provisions of the Revised Statutes, before he can begin to peruse the Code with advantage. Matter of Pratt, 13 How. 1, 3.

A legal mind, thoroughly trained and disciplined by a preparatory course of study, and deeply imbued with a love for the profession, must be brought to the study of common-law and equity principles, a thorough knowledge of which is essential to a correct understanding of the rules of practice founded on them, for, as Blackstone truly remarks, "if practice be the whole the student is taught, practice must also be the whole he will ever know; if he be uninstructed in the elements and first principles upon which the rule of practice is founded, the least variation from established precedents will totally distract and bewilder him; he must never aspire to form, and seldom expect to comprehend, any arguments drawn, a priori, from the spirit of the laws and the natural foundations of justice." 1 Bl. Com. 32. It is also important that a practitioner should be familiar with the common-law and the equity practice. Many of their rules are still applicable under the Code; and a knowledge of those that have even become entirely obsolete under our present practice serves to throw much light on the proceedings adopted in their stead.

The endless variety of causes out of which litigation is con

Duty of attorney to his client.

stantly arising, demanding the services of skilled attorneys, renders a knowledge of the world-its men, and business, customs and usages-an essential qualification; but one that can be acquired only by close observation and extended experience. Every species of knowledge may be made subservient to the purposes of the practicing attorney, and all who seek to enter the profession should be indefatigable in its acquisition. "They must pry into the secret recesses of the human heart, and become well acquainted with the whole moral world, that they may discover the abstract reason of all laws; and they must trace the laws of particular States, especially of their own, from the first rough sketches to the more perfect draughts; from the first causes or occasions that produced them, through all the effects, good and bad, that they produced." Lord Bolingbroke, Stud. of Hist., 353.

Section 8. Duty of attorney to his client. These duties, at the present day, are of a far more complicated and responsible nature than those which attached to the office of an attorney in the earlier courts, after which ours are generally modeled, and hence a higher degree of professional skill and honesty is required on the part of those intrusted with them.

An attorney, though an officer of the court, cannot generally be compelled to appear or act for any one unless he have undertaken so to do, or accepted a retainer, but in some cases, as where a party sues in forma pauperis, an attorney may be compelled by the court to act without fee or reward. 2 R. S. 444, 445. Although not absolutely necessary that the appointment or retainer of an attorney should be in writing, in most cases it is advisable; being better for the attorney, because he avoids all difficulty in proving his retainer; and it is better for many clients, as it puts them on their guard and prevents them from being drawn into law suits without their own express direction. Owen v. Ord, 3 Carr. & P. 349. In general, the authority of an attorney is presumed, and the adverse party having no notice to the contrary may act on that presumption. Hamilton v. Wright, 37 N. Y. (10 Tiff.) 502; S. C., 5 Trans. App. 1; Brown v. Nichols, 42 N. Y. (3 Hand) 26; 9 Abb. N. S. 1; Foote v. Lathrop, 41 N. Y. (2 Hand) 358. When called in question, the authority of an attorney is to be determined by the court. Commissioners v. Purdy, 36 Barb. 266; S. C., 22 How. 506; 13 Abb. 434. An attorney commencing a suit in

Duty of attorney to his client.

ejectment must first obtain the written authority of the plaintiff to do so. Bank v. Conklin, 2 How. 7. See 2 R. S. 305, 306; Harris v. Mason, 10 Wend. 568; Howard v. Howard, 11 How. 80.

The relation of attorney and client being of a highly confidential nature, all communications passing between them, respecting the subject of the attorney's professional employment, are privileged, and he cannot be compelled, nor will he be allowed, to disclose them. Bank of Utica v. Mersereau, 3 Barb. Ch. 595; Williams v. Fitch, 18 N. Y. (4 Smith) 546; Clark v. Richards, 3 E. D. Smith, 89; and this same privilege extends to similar communications between the attorney's clerk and such client. Sibley v. Waffle, 16 N. Y. (2 Smith) 180. A statement, however, made to an attorney, is no more privileged than one made to any other person, unless it is made for the purpose of obtaining professional advice on the subject of such statement. Marsh v. Howe, 36 Barb. 649. Neither will the privilege be sustained, where there appears to be a combination between the attorney and client for the purpose of withholding important evidence. People v. Sheriff of New York, 29 Barb. 622; S. C., 7 Abb. 96. If an attorney has an interest in the facts communicated to him, and a disclosure becomes necessary to protect his own personal rights, he is no longer bound by the obligation of professional secrecy. Rochester City Bank v. Suydam, 5 How. 254;

S. C., 3 Code R. 249.

On being retained in a case it becomes the duty of the attorney to make all needful preparation for the trial of it. To this end, a correct statement of the facts should be obtained from an examination of the various papers and documents in the cause, and by a personal communication with the client, and by examination of the witnesses and proofs. Thwaites v. Mackerson, 3 Carr. & P. 341; Hopkinson v. Smith, 7 Moore, 237; S. C., 1 Bing. 13; Harvey v. Mount, 8 Beav. Ch. 439. In the further preparation for trial the attorney should prepare briefs of the pleadings, proofs, and observations; procure the production of the requisite documents, and subpoena the requisite witnesses. De Roufigny v. Peale, 3 Taunt. 484; Reece v. Righy, 4 B. & Ald. 202. When an attorney is employed it is on him that all notices should be served, and not on the client, who cannot be supposed to know their effect, and service on the client will generally be deemed irregular and of no effect. Code, & 417; Wardell v.