tions over time would show that what be- gan very slowly and tentatively at the end of the nineteenth century has grown into a mature system today, with the resourc- es and administrative support necessary to ensure its own integrity. Before we get to integrity, let’s start with authority. Although early laws gave the Court the right to admit attorneys to prac- tice, and impliedly to delicense them, Jus- tice Sherman Moulton noted in 1932 that “The Court’s inherent power of discipline is not derived from the Constitution, or, necessarily, from the statutes of the State. It has existed from time immemorial.”22


In


1988, Chief Justice Frederic Allen refined that idea, explaining, “The inherent pow- er of discipline exists in the trial courts as well, albeit their powers are less than those of this Court.”23


Authority to Regulate


The 1974 Constitutional amendments gave the Vermont Supreme Court the ex- press constitutional power to discipline at- torneys.24


yourself in the office of an attorney within the court, according to the best of your learning and discretion, and with good fidelity, as well to the court, as to the client. So help you God.27


The statute ordered that “whosoever shall transgress rules of pleading appoint- ed by any court, shall be liable to suffer such fine for every such offense as the said courts shall impose, not exceeding the sum of five pounds.”28


Attorneys were obliged


Surveyors enjoyed a better income than attorneys at that time. The law was amended in 1787 to give the


“The Supreme Court shall have


administrative control of all the courts of the state, and disciplinary authority con- cerning all judicial officers and attorneys at law in this State.”25


Prior to 1974, the pow-


er was described by legislation. The first act of the first legislature was to regulate attorneys, in 1778.26


This law authorized


the superior and county courts to “approve of, nominate and appoint” attorneys who would take the oath:


You ____________ solemnly swear by the everliving God, that you will do no falsehood, nor consent to any to be done in the court; and if you know of any to be done, you shall give knowl- edge thereof to the judges, or justices of this court, or some of them, that it may be reformed: you shall not, wit- tingly and willingly, or knowingly, pro- mote, sue or procure to be sued, any false or unlawful suit, nor give aid or consent to the same: you shall demean


to charge no more than a schedule of fees, and added, “the party that shall recover judgment shall have his attorney’s fees ac- cording to the above regulations, allowed as part of cost of trial.” The fee for each case in the superior or county court was six pounds, as compared with the county sur- veyor’s per diem fee of six pounds, ten shil- lings.29


Supreme Court of Judicature—renamed from the Superior Court—the exclusive right to appoint and admit attorneys at “their bar,” and county courts to admit at- torneys to their venues. The 1787 act also required attorneys to have at least three years of study with a Vermont licensed at- torney or have earned a B.A. at a university or college and studied two years, and to pass an examination, to show “competent knowledge of the Laws for that purpose,” prior to admission. The courts were given the power to suspend or displace any of their attorneys for misdemeanors, or fine them not exceeding ten pounds for each offense.30 A further refinement in 1789 explained that the 1787 act had not intended to ex- clude any attorney of good moral character who was in regular and approved practice in a neighboring state for more than three years, lived in Vermont and owned land for two years, from being examined and ad- mitted, even without the local study.31


This


statute is the first use of the phrase, “good moral character” in Vermont law as applied to attorneys. This became not only a pre-


condition to admission, but a measure of continuing fitness to practice, but not for another century. “Moral character” is a troubling concept in a court of law, with natural law overtones, but it is a standard, however ill-defined, and no legitimate sys- tem of governance can remain respectable without standards.32 The Judiciary Act of 1797, a product of the hand of Nathaniel Chipman, con- solidated the various acts relating to the courts. Attorneys could be admitted to practice by passing an examination con- ducted by the county courts, and showing a competent knowledge of law and good moral character. Admission to the Supreme Court was by a similar process.33 The first legislative act devoted exclu- sively to attorney misconduct was passed in 1807, and governed “attornies and pet- tifoggers.”34


flected the general attitude of the legisla- ture toward some of the profession.35


The use of the latter term re- At-


torneys were expressly forbidden under that act from entering into combinations to prevent another attorney from appear- ing in any cause, on penalty of thirty-three dollars. An attorney entering an appear- ance without being employed by the party, charging that non-client fees, or attempt- ing to collect the same, would “have his name erased from the list of attorneys of said court” and become incapable of prac- ticing before any court, until reinstated. There was also a penalty of twenty dollars for charging undue costs. Attorneys enter- ing into agreements with sheriffs or other law enforcement office to delay a writ of execution or engineer the jailing of per- sons because of a writ at different times, rather than as one service, for the purpose of encouraging an additional case, or other speculating practices, would be fined sixty dollars.36 The fines changed over time, but laws


prohibiting attorneys from appearing in a suit without being employed, commenc- ing a suit in the name of an assignee to en- hance costs, colluding with officers to de- lay execution, speculating to increase fees, and taxing or recovering unlawful costs, re- mained in statute. These laws were amend- ed from time to time, but versions of them are found today in Title 13.37


Fees for trans-


actions were not set by statute, but bills of costs to the recovering party for writs re- turnable in county court could not exceed one dollar.38


The attorney’s oath changed with the adoption of the Revised Laws of Vermont (1880):


You solemnly swear, that you will do no falsehood, nor consent that any be done in court, and if you know of any, you will give knowledge thereof to the judges of the court or some of them,


10 THE VERMONT BAR JOURNAL • FALL 2013 www.vtbar.org


Ruminations: The Great Falls


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