Scott v. Van Alstyne

9 Johns. 216

• Court: New York Supreme Court
• Decided: August 15, 1812
• Status: Published

Opinion

Per Curiam.

. An attorney, being defendant, cannot, by plea, waive or destroy his privilege, because the privilege is allowed him, not for his own sake, but for the sake of the court, and the suitors jn > If he renounces his privilege by mere absence from court, and business, how is the plaintiff to know that fact beforehand ? He can only judge from the record, and it is sufficient for him, the defendant is an attorney, proutpatet per recordum. This is the amount of the doctrine in the adjudged cases. (Gardner v. Jessop, 2 Wils. 42. Farrill v. Head, Barnes, 41.) If the defendant wishes to withdraw himself from the privilege, or, as he may choose to consider it, the burden of his office and distinction as an attorney, he must apply to have his name struck off the roll. This he may do at any time, and the court will always grant that leave, unless the application be made to withdraw himself from some impending censure, and then, as Lord Eldon has lately observed, (6 Vesey, 4.) the court will refuse to do it.

Judgment for the plaintiff.