Opinion
01-01-1820
Ex Parte Robert W. Collins
The applicant is Clerk of the Superior Court of Law for Lewis county, and is also licensed to practice Law in the Courts of the Commonwealth. He applied to the said Superior Court to be permitted to practice as Counsel and Attorney in that Court, on taking the oaths prescribed by Law. That Court adjourned to the General Court, the following questions: 1. May the Clerk of a Superior Court of Law, who is also licensed to practice as Counsel and Attorney in the Courts of the Commonwealth, be admitted to practice in the Court of which he is Clerk, on taking the oaths prescribed by Law? 2. Does the admitting such applicant to take the oaths of Counsel and Attorney, and to practice as such in the Court whereof he is Clerk, operate as a virtual abandonment of his office as Clerk, so as to render the same vacant, or may the functions of both offices be discharged by the same person, at the same time? The application of the Clerk was founded on this proposition, that the Act of Assembly only prohibited the Clerks of County Courts from appearing and pleading as Attornies in their own Courts, and, therefore, did not apply to him.
1 Rev. Code of 1819, ch. 76, § 13.
OPINION
Opinion and judgment of the Court:
The Court is unanimously of opinion, that the duties of Clerk of a Superior Court of Law, and of Counsel and attorney in the same Court, are incompatible with each other, and that they interfere so much one with the other, that there is danger lest they might not both be executed with impartiality and honesty, and therefore this Court doth decide, that, according to the Common Law of the land, the Clerk of a Superior Court ought not to be permitted to take the oaths prescribed by Law for Counsel and Attornies, nor to practice as such in the Court of which he is Clerk.
5 Bac. Abr. p. 204, tit. " Offices," & c. letter K; 4 Inst. 100.
This decision renders it unnecessary to decide the second question.