In the Matter of O'Neill , 1882 N.Y. LEXIS 427 ( 1882 )

By the Constitution of 1846 it was provided that "any male citizen of the age of twenty-one years, of good moral character, and who possesses the requisite qualifications of learning and ability, shall be entitled to practice in all the courts of this State." (Const. of 1846, art. 6, § 8.) This article of the Constitution of 1846 was superseded by the new article which took effect on the 1st of January, 1871. The admission of attorneys and counselors is now regulated by statute. We have no doubt of the power of the legislature to admit persons not citizens to practice as attorneys and counselors of the courts of this State. The question to be determined is whether, by the law of the State in force at the time of the appellant's admission, citizenship was among the qualifications required to entitle a person to be admitted as an attorney. By section 3, chapter 486, Laws of 1871, it is provided that "every male citizen of the age of twenty-one years hereafter applying * * * shall be examined by the justices of the Supreme Court or a committee appointed by said court at a General Term thereof, and if such persons so applying shall be found to have complied with such rules and regulations as may be prescribed by the Court of Appeals, and shall be approved by said justices of the Supreme Court for his good character and learning, the court shall direct an order," etc. The rules adopted by the Court of Appeals in pursuance of this statute provided that, "to entitle an applicant to an examination as an attorney, he must prove to the court, among other things, that he is a citizen of the United States, twenty-one years of age, and a resident of the department within which the application is made, and that he is a person of good moral character." (Rule 2, 1871.) By rule 8 it was provided that "persons who have been admitted and have practiced three years as attorneys in the highest courts 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 been residents of this State before applying for admission." In 1877 the rules were so amended that "persons who have been admitted as attorneys in the highest courts of another State may be admitted to examination as attorneys and counselors if they have served a regular clerkship of one year in the office of a practicing attorney of the Supreme Court of this State, and shall, in other respects, be entitled to such examination." As an applicant for examination is required to prove that he is a citizen of the United States, this rule plainly requires that one who seeks an examination on the ground that he has been admitted as an attorney of another State must be a citizen of the United States. In 1880, rule 8 of 1871 became rule 7, and was amended by adding after the clause providing for the admission of practitioners of three years standing, from other States, the following: "And the General Term of the Supreme Court may, in his discretion, so admit and license any person who has thus practiced in another country, but he must possess the other qualifications required by these rules, and must produce a letter," etc. It is under this clause, first inserted in 1880, that the appellant was admitted. It will be observed that the clause applicable to the admission of practitioners of three years standing from another State, as first adopted, required that such persons should have become residents of this State before applying for admission; but when the clause was added, allowing the General Term, in its discretion, to admit and license any person who has thus practiced in another country, the clause requiring a person to have become a resident before making the application was dropped, and in its stead was inserted the requirement that he must possess the other qualifications required by these rules. The amendment, providing for the admission of persons who have practiced for three years in another country, was made to meet the case of a citizen of the United States who had thus practiced in another country. But to guard against conferring the right of admitting persons not citizens of the United States, under the general language of this amendment, the other change was made in the rule by which the applicant, whether he be a practitioner from another State or from another country, is required to possess the other qualifications required by these rules. There can be no doubt that citizenship is among "the other qualifications" required of those who apply for an examination to be admitted as attorneys, and it follows that one who seeks admission upon the ground that he has practiced for three years in the courts of another country must show that he is a citizen of this country at the time of making his application.

The appellant, not being a citizen, was not entitled to admission, and the action of the General Term, in revoking his license, was proper and should be affirmed, without costs.

All concur, except RAPALLO, J., absent.

Judgment affirmed.