3. ATTORNEY AND CLIENT (§ 14*)-"SOLICITORS"-COURTS OF EQUITY. Historical origin in England of solicitors, who are now the representatives or attorneys of parties litigant in courts of equity, considered. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 21; Dec. Dig. § 14.** For other definitions, see Words and Phrases, vol. 7, p. 6548.] 4. APPOINTMENT OF SOLICITORS-HISTORY. * in New Jestory of the appointment of lucitors is, TION. CONSTITU The reasons considered why, when the Constitution of 1844 was framed, and the Governor ceased to be the Chancellor, the appointment of attorneys, solicitors, and proctors was not vested in the courts, as was done in New York in 1777, when the same constitutional change was made in the courts of that state. 6. ATTORNEY AND CLIENT (§ 56*)-OFFICE OF ATTORNEY-STRIKING FROM ROLL - JUDG MENT. The action of the Supreme Court in striking an attorney from the rolls may be correctly regarded as a judgment that, under the condition contained in his license that his appointment continued "during his good behavior," the license or commission has expired by its own limitation. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 76, 79; Dec. Dig. § 56.*] 7. ATTORNEY AND CLIENT (§_36*)—SOLICITORS IN CHANCERY-POWER TO DISCIPLINE. Judge Paterson's practice act and his act prescribing certain oaths (Pat. 355, 376), remaining substantially unchanged to-day (3 Comp. St. 1910, p. 4054, §§ 5, 16, 17; 3 Comp. St. 1910, p. 3769, § 6), discussed in relation to the independent existence of the two offices of attorney at law and solicitor in chancery, and the control each court has over its own offi cers. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 49; Dec. Dig. § 36.*] 8. ATTORNEY AND CLIENT (§ 36*)-SOLICITOR IN CHANCERY-POWER TO DISCIPLINE-REFERENCE TO SUPREME Court. If the Court of Chancery of New Jersey cannot discipline solicitors, its own officers, there is no way provided by law by which that court can communicate a case of malpractice to the Supreme Court, or make it the duty of that court to act in the premises. from Mr. Paterson's law. In all cases of disciplining an attorney by suspension or expulsion, it exercises an inherent power; the Paterson law in regard to that matter being declaratory. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 49; Dec. Dig. § 36.*] 10. EQUITY (§ 393*)—MASTERS IN CHANCERYJURISDICTION TO REMOVE. A master in chancery is removable only by the Court of Chancery. Dig. No2, 353, Dec. Diges, see Equity, Cent. [Ed. Note.-For other cases, cery is not lost by mere disuse during a period, An inherent power of the Court of Chanhowever long, during which there was practically no occasion for its exercise. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 49; Dec. Dig. § 36.*] 12. ATTORNEY AND CLIENT (§ 36*)—SOLICITOR IN CHANCERY-POWER TO DEBAB. Some reported New Jersey decisions in malpractice cases cited and discussed. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 49; Dec. Dig. § 36.*] 13. ATTORNEY AND CLIENT (§ 36*)-SOLICITORS IN CHANCERY COURT-POWER TO DISCIPLINE. Nothing but plain provisions of the Constitution or of constitutional legislation should be deemed to have deprived the Court of Chancery of New Jersey of the power of disciplining its tion" of that court, when they are guilty of own solicitors, who practice "under the direcof Chancery dependent upon the Supreme Court malpractice as solicitors, or to leave the Court for the discharge of this important function relating to its own machinery and its own internal affairs. [Ed. Note.-For other cases, see, Attorney and Client, Cent. Dig. § 49; Dec. Dig. § 36.*] 14. LICENSE OF LEGAL PRACTITIONERS. Some ancient forms of commissions or "licenses" issued to legal practitioners described, as illustrations of the views expressed in the opinion. should not be adjudged guilty of malpractice John M. Enright, of Jersey City, Prosecu- STEVENSON, V. C. The malpractice charged and proved against Mr. Raisch relates solely to his conduct as an officer of the Court of Chancery, and consists of fraud and imposition upon the court in the conduct of a suit for divorce. The proof is convincing. The respondent did not offer any testimony, and did not go upon the witness stand to meet the force of the direct proofs of mal[Ed. Note.-For other cases, see Attorney and practice or to offer any explanation. It does Client, Cent. Dig. § 49; Dec. Dig. § 36.*] not seem to be necessary to set forth in very 9. ATTORNEY AND CLIENT (§ 36*)-DISCIPLIN- great detail the evidence of the malpractice ING ATTORNEYS JURISDICTION OF SUPREME of which it is my duty under the evidence to Court. The Supreme Court, in suspending attor- find the respondent guilty. The respondent, neys, does not necessarily derive its authority as a solicitor of this court, on February 20, 1911, filed a petition on behalf of May Matt- | practice charged against him. The questions ner against her husband, Otto Mattner, pray- of fact upon the evidence and an appeal for ing for an absolute divorce on the ground mercy, in case the respondent should be found of adultery. The usual proceedings seem to guilty of any malpractice, constituted the have been then taken to bring in the defend- only subject-matter of the argument on his ant by publication, and the proofs filed show behalf. that notice of the suit was actually received by the defendant through the mail while he was residing in Baltimore, Md., and that his time to file an answer expired on the 13th day of June, 1911. The suit seems to have slumbered until February 21, 1912, when an appearance for the defendant, which, it is perfectly apparent, is in the handwriting of the respondent, Mr. Raisch, was filed in the name of Mr. James D. Manning, a solicitor of this court, whose condition of health may account for the fact that he was not called as a witness in this proceeding. [1] In view, however, of some variance or uncertainty of opinion in the minds of judges and members of the bar as to the correct course of procedure to be taken in order to have a solicitor of the Court of Chancery removed or suspended for malpractice, it has been thought that a statement in support of the exercise of such jurisdiction in this case is advisable. Such a statement seems all the more appropriate because of the anomalies and uncertainties which are encountered when the effort is made to ascertain the exact status of attorneys at law and solicitors in chancery of New Jersey, in respect of the historical origin and legal basis of their offices. For generations many things appertaining to these officers, who, in the colonial legislation, are sometimes called attorneys at law, and sometimes "practitioners of the law" (see ordinance of 1723 by Governor Burnett, regulating and establishing fees, p. 10), have been involved in the obscurity of ancient customs, the exact origin of which is often hard definitely to ascertain. What comes down from the past and fits into the requirements of the present is often accepted without inquiry in regard to its historical or legal basis, and without consideration, or even recognition of characteristics which theoretically are anomalous or even absurd. On March 18, 1912, an answer was filed purporting to be signed by James D. Manning as solicitor of defendant, of which answer, both the body and the signature, it is likewise perfectly apparent, are in the handwriting of Mr. Raisch. The respondent admitted to a witness who testified in this cause, that he (Mr. Raisch) had signed the answer in Mr. Manning's name, but claimed that he had been permitted to do so by Mr. Manning. The answer on its face is a sham, setting forth no defense, while admitting the marriage and the residence of the petitioner in the state of New Jersey, and it does not exhibit the signature of Mr. Mattner, the defendant, as required by the statute. The proofs do not show that the defendant, Mattner, ever employed Mr. Manning or any solicitor to defend the suit, and indicate that he did not know that this answer was filed. Mr. Raisch stated to the witness above re-itors in chancery consists in the fact that ferred to that he had procured the answer to be filed because he could not pay the fee for getting an order of reference. The fraudulent plan of the respondent seems to have been to procure an order of reference to a Vice Chancellor and bring on the cause for hearing upon notice to Mr. Manning, as solicitor of the defendant, who, at the time, was perhaps in such a condition of health as to make him irresponsible for his actions. This, of course, would have insured an ex parte hearing on an answer raising no issue, and thus all the expenses of a reference to a special master, which Mr. Raisch had neglected to have made in June, 1911, would have been saved. [2] Probably the most interesting and curious feature of our present New Jersey method of appointing attorneys at law and solic It these officers of the courts are appointed not In my opinion, the conduct of the respondent constitutes "such intentional fraud upon the court as shows evidence of moral turpitude" (In re Cahill, 66 N. J. Law, 527, 531, 50 Atl. 119, and makes the inference unavoidable that he is not a fit person to be permitted to exercise the functions of a solic-are not officers of the state; they are not reitor of the Court of Chancery. Counsel for the respondent made no objection to the exercise of jurisdiction by the court to remove or suspend the defendant, movable by impeachment. They are officers of the courts, and are removable by the courts. By what courts and through what judicial process these officers are removable in New Jer tion. No one has ever suggested that, after "The Six Clerks from the nature of their the Governor of the state has commissioned office were the attorneys of the parties chargor "licensed" an attorney at law and solic-ed with their business." Ex parte The Six itor in chancery, he now has any power to Clerks, 3 Ves. Jun. 599. When the business revoke the appointment and cancel the com- of the court greatly increased, the sworn mission, although a colonial governor may clerks, or under clerks were brought in as the possibly have assumed to exercise such a assistants of the Six Clerks, and they also power. The lawyer is licensed only "during became the attorneys of the parties litigant his good behavior," but the Governor, so far in the court. Twort v. Dayrell, 13 Ves. Jun. as I know, has never assumed the power of 195; Braithwait on the Six Clerks in Chandetermining that the license of a lawyer by cery, p. 10. During this period when the Six its own terms had expired. This has been Clerks and the sworn clerks or under clerks, regarded as a judicial function to be exer- were the representatives or attorneys of the cised by a court. parties litigant, under the pressure of busi[3] 1. The office of solicitor in chancery is ness a class of agents, not necessarily attora distinct and separate office from that of neys at law, found employment to expedite attorney at law. The fact that these two of- or "solicit" causes, sometimes by operations fices formerly often were held and now uni- of more than doubtful legality. An interformly are held by a single person is a mere esting account of this class of hangers-on and accidental circumstance growing out of the their final acceptance by the Court of Chanconditions under which legal business in the cery as officers of the court will be found in courts has been attended to during the last Mr. Christian's book above cited. In time, century or two. During a 'ong period it was as stated by Mr. Daniel, supra, the business the practice of the English Court of Chancery of the Court of Chancery became so great to admit as solicitors all applicants who had that the sworn clerks were confined "to the been admitted as attorneys at law without performance of a certain portion of the busifurther examination, but a separate examina-ness in every suit, and the remainder was tion was held under the direction of the performed by solicitors duly admitted as ofCourt of Chancery for applicants for appoint- ficers of the court." ment as solicitors who did not hold attorneys' licenses. All persons who were deemed qualified for appointment by the Court of Chancery as solicitors, evidenced by the presentation of their credentials as attorneys at law, or by the result of an examination held under the direction of the Court of Chancery, were appointed and sworn in by the Court of Chancery as solicitors, and thereupon they signed a roll which was kept by that court. For malfeasance the English Court of Chancery always exercised the power of striking the name of the convicted solicitor from its rolls. 2 Dan. Ch. Pl. & Pr. (6th Am. Ed.) c. 43, p. 1840 et seq.; 1 Smith Ch. Pr. c. 26, p. 676 et seq. The appointment and the suspension or expulsion of solicitors were effected by the action of the Court of Chancery of England, and this power was regulated by English statutes. There is no evidence that I have been able to discover that any solicitor of the Court of Chancery of England was ever appointed by letters patent from the King. In the great majority of the states of the Union, where law and equity are both administered by the same court, it has naturally come about that the two offices of attorney at law and solicitor in chancery have practically been consolidated. It is interesting to note that in the state of Delaware, where equity is administered by a chancellor, in the case In re Hoffecker, 60 Atl. 981, the Court of Chancery held that the position of the respondent, who in the proceeding was charged with malpractice, "as attorney at law, was absolutely independent of his position as solicitor in chancery," and that the rule to be entered could "only affect his position as solicitor." The respondent solicitor, being convicted of malpractice, was stricken from the rolls of the Court of Chancery. 2. The origin of the present method by which in New Jersey persons are inducted into the office of attorney at law, and the other office of solicitor in chancery, is, to a considerable extent, shrouded in the mist of antiquity. A great deal of information on this subject of interest to the New Jersey lawyer has only recently been made acces From the history of the appointment of attorneys at law and solicitors in chancery in England and in this country, the fact ap-sible in the elaborate and illuminating opinpears to be indisputable that the offices are as distinct as are the offices of a judge of a common-law court and a judge of a court of equity under the ancient English and present New Jersey system. It was a long time after attorneys were recognized in the law courts and their appointment was regulated by statute before there were any solicitors in chancery, and, when solicitors first appeared, they "had no strictly defined position." Christian's ion of Mr. Justice Garrison in the Branch Case (In re Branch, 70 N. J. Law, 537, 57 Atl. 431), and in the brief of counsel, submitted to the court and printed with the opinion in that case. [4] A brief discussion of some points pertaining to the history of attorneys and solicitors in New Jersey will be attempted herein mainly for the purpose of emphasizing the proposition that historically, as well as legally and logically, the office of a solicitor in responding office of attorney in the law, tration of Lord Cornbury until the adoption courts. of our present Constitution, the office of atIt seems quite plain that the ancient cus- torney at law was bestowed by a governor, tom of having attorneys at law licensed or who was also chancellor. It is safe, I think, commissioned by the colonial governors was to assume that, if the early licenses or comsupported by the language of the commission missions issued by the New Jersey colonial to Lord Cornbury, which authorized and em- governors undertook to vest the licensee with powered him "to constitute and appoint judg- the office of solicitor in chancery, no such es and, in cases requisite, commissioners of commission was ever issued until a Court of oyer and terminer, justices of the peace and Chancery was created, so that the governor, other necessary officers and magistrates in in exercising his discretion and issuing the our province, for the better administration | commission, necessarily acted as chancellor of justice, and putting the laws in execution." in extending the commission, so as to make Field's Provincial Courts of New Jersey, p. it include the office of solicitor in chancery, 250. or, at any rate, consented to such extension. There seems to be ground for holding that, prior to the Constitution of 1844, all solic itors in chancery were appointed by the chancellor, while no attorney of the Supreme Court has ever been appointed by that court. In the case of Henry W. Cooper, 22 N. Y. 67, Prof. Dwight, in his learned and elaborate brief (page 79), quotes this same language which was found in the royal commission to Lord Cornbury as the colonial governor of New York, and states that the New York governor "doubtless derives his power" to appoint attorneys at law from this clause. I can see no reason to doubt the truth of this statement, although the Supreme Court of New York in an early case stated that before the Revolution the power of appointing attorneys was exercised by the Governor, and that such power was recognized by. the courts, but whether such power was exercised "justifiably or not" the court deemed it "immaterial to inquire." People v. Justices of Delaware, 1 Johns. Cas. (N. Y.) 181, 182 (1799). In New Jersey Lord Cornbury proceeded by ordinance to establish courts, but he conferred upon those courts no power to appoint attorneys at law. He reserved this prerogative to himself. It may be noted in this connection that for every commission issued to an attorney the governor received a fee of 20 shillings. Governor Burnett's Ordinance of 1723, above cited. Mr. Justice Garrison in his opinion in the Branch Case (70 N. J. Law, p. 571, 57 Atl. 435) accurately says: "The executive licensee is constituted a solicitor in chancery, a privilege that the Supreme Court of this state is confessedly powerless to confer." The rules of the Supreme Court, from the earliest of which we have any knowledge down to those now in force, have uniformly provided merely for a recommendation to the governor of applicants who have successfully passed the prescribed examinations for appointment to the office of attorney at law. See Rules of 1752, 1767, and 1780, set forth in 70 N. J. Law, 572, 57 Atl. 436 et seq.; Rules of 1805, 4 Grif. Reg. 1320; Present Rules 1 to 10. Whatever the scope of the examinations may have been during the latter part of the historical period with which we are dealing, the rules of the court indicate distinctly that the business to be done under them relates solely to the appointment of attorneys at law, the officers of the court which prescribes the procedure. The governor, however, as governor, and necessarily also as chancellor, originally made the additional appointment to the office of solicitor in chancery. Before any definite custom had been It is unnecessary to examine the ancient practice centuries ago, when the common-law courts of England recognized no attorneys, but required the parties to appear from day to day in person, according to which practice the king, by letters patent, authorized | certain individuals to appear by attorney, established, there is nothing in the history of or certain persons to appear in the law courts as attorneys of parties litigant therein. Before the commission was issued to Lord Cornbury, the courts of law and equity in England, under English statutes, absolutely controlled the admission of both attorneys and solicitors. our courts that I have discovered which sug gests that the colonial governor, after he had created a court of chancery by ordinance, had not full power as chancellor (apart from the authority conferred on him as governor by his commission above mentioned to appoint "necessary officers") to appoint and expel these officers of his court, these solicitors in chancery, precisely as was then done by the English Court of Chancery. The form of the commission or license at the present time issued by the Governor of New Jersey to the legal practitioner at the commencement of his career, in terms under- It is interesting to note from Prof. takes to constitute him an attorney at law Dwight's brief in the Cooper Case, supra (22 and a solicitor in chancery. I have not been N. Y. p. 78), that the license given by the able to ascertain when this commission or colonial governor of New York to the legal license undertook to include the office of practitioner was substantially in the same solicitor in chancery, nor, for the purposes form and phraseology as that employed in of the present inquiry, does the matter seem New Jersey at the present time, except that to be of very great importance. As we shall it undertook to appoint the party who received whatever being made to the cognate offices | These officers were expelled or "disbarred" of counselor at law and solicitor in chancery. by the courts by which they had been apThe structure of the courts in New York and pointed. For obvious reasons it was found New Jersey during the colonial period was convenient to provide by law that the resubstantially the same. The governor, with moval or suspension of an attorney or solicor without his council, constituted as much of itor "by the Chancellor or the Supreme Court, a court of chancery as these colonies had. In from their respective courts" should operate each colony the Court of Chancery was re- as a removal or suspension in every court in garded at times with great disfavor. Field the state, but in every other case the removal on Provincial Courts, pp. 109, 110. There or suspension should be "confined to the were periods in New Jersey when the Court court in which it should be declared." 1 R. of Chancery was not open. Clevenger & S. of 1829, p. 109, § 25. Keasbey on the Courts of New Jersey, p. 121. Beyond all doubt, the jurisdiction of the colonial governor of New Jersey as chancellor, either alone or in conjunction with his council, was seldom invoked during long periods prior to the Revolutionary War and the establishment of the state of New Jersey. To appoint an attorney at law also a solicitor in chancery in large numbers of instances would probably have been an empty form. If the commissions issued by Lord Cornbury and his successors appointing attorneys at law were silent, like the commissions used in New York, in regard to the office of solicitor in chancery, that fact did not interfere with the power of the governor-chancellor to recognize "legal practitioners"-i. e., attorneys at law-and give them the status of solicitors in his courts. There were ordinances promulgated in the eighteenth century providing for fees of solicitors in chancery, but, aside from that, we find little in the colonial legislation which throws light upon the status or practice of these officers of the Court of Chancery. [5] When, following the Declaration of In-ed by the Supreme Court for appointment as dependence, the state of New York in 1777 adopted its first Constitution, it abolished the whole judicial system which existed in the same form in New York as in New Jersey, under which the Governor, with or without his council, was the Chancellor and the president judge of the Court of Appeals; in fact, the head of the judiciary of the state. It was ordained that an independent Chancellor should be appointed, while the Governor remained, as he has continued ever since, both in New York and New Jersey, the executive head of the state, clothed with political and administrative functions. When, before the Declaration of Independence, the New Jersey Constitution of 1776 was framed, it was contemplated that the separation of the colony from the mother country might not be permanent, and the convention therefore did not change the old order of things so radically as did the New York convention which was held in the following year, after the Declaration of Independence, and when the Revolutionary War was in full blast. Severance of the political and judicial functions of the Governor was not attempted. The Governor of the state of New Jersey was left as the president judge of the court of last resort and as the Court of Chancery. No practical reason therefore presented itself to the framers of this Constitution for interfering with the method of appointing attorneys at law and solicitors in chancery, which had been established for three-quarters of a century. The New York Constitution of 1777 therefore naturally provided that "all attorneys, solicitors, and counselors at law, hereafter to be appointed, be appointed by the court, and licensed by the first judge of the court in which they shall respectively plead or practice, and be regulated by the rules and orders of the said courts." N. Y. Laws 1802, vol. 1, p. 14; R. S. 1829, vol. 1, p. 35, § 27. From that time to the present the courts in New York, subject to the Legislature, have regulated both the admission and the expulsion of attorneys, counselors, and solicitors. The different kinds of law courts appointed their own officers, their own attorneys, while the Chancellor appointed the solicitors. Whether or not the colonial governors at any time began to include the office of solic itors in chancery in the commissions which they issued to persons who were recommend attorneys at law, such commissions certainly began to cover both offices at some time prior to 1844. A copy of a commission or license issued in 1839 now before me is in precisely the same form as the licenses issued at the present day. It plainly was not necessary that the colonial Governors or the Governors under the Constitution of 1776 should 11cense solicitors, or even formally by rule of court or otherwise admit all attorneys at law as solicitors in chancery. These Governors as Chancellors might allow, as of course, all attorneys at law to practice as solicitors in their court, and thereby create and establish a custom. If, however, the colonial commissions originally mentioned only the office of attorney at law, as was the case in the colony of New York, there must have come a time after the business of the Court of Chancery had increased, either before or after the adoption of the Constitution of 1776, when it would naturally have occurred to the Chancellor that his custom of admitting without question, as solicitors of his court, the legal practitioners whom he licensed as attorneys at law might well have the sanc tion of a commission or a rule of court by which it would appear that attorneys at law had the permanent office of solicitor in chan cery conferred upon them. The great ma |