Question II: On the sins of a wicked advocate

I ASSERT first, that an Advocate who through notable negligence or ignorance of his loses his client's just cause sins mortally against justice and is bound to restitution of the value of the cause, and to the expenses and other damages; and this, if he presents himself as a learned man, and his client did not know his ignorance; otherwise not, unless he acts with fraud or grave fault, and by cavillation takes the cause from him. So commonly the Doctors: Nauarrus sum. Lav. cap. 25, num. 29; Hostiensis in cap. calumniam, de poenis; Innocent in cap. sicut dignum, de homicid.; Sylvester V. Advocatus, num 16; Toletus lib. 5 summae, cap. 62; Filliucius tom 2, tract. 40, in octavum praeceptum, cap. 10, num. 295; Lessius Lib. 2, cap. 51, dub. 8, num. 47; Fagundez lib. 8, cap. 38; and it appears from Leg. Idem iuris, §. 1, ff. ad Leg. Aquil.

The REASON is that by justice he is bound to show diligence for his client, and the greater, the more difficult the client's cause. Thus he is bound also to be skilled.

I ASSERT secondly, that an Advocate who defends a cause which he knows to be unjust sins mortally against justice and is bound to restore to the adverse party the damages that befall it, of expenses, etc. This is common among the Doctors. So D. Bonaventura in speculo animae, cap. 2 et 4; D. Thom. art. 3, ad 4. But Syluester, Filliucius, and Lessius note that an Advocate, after he has admonished his client of the injustice of the cause, is bound to abandon it if the client wishes to pursue it, yet not to betray to the adverse party what he knows in secret. In a just suit he is bound also not to prolong it, not to allege laws sophistically, from D. Bonaventura in speculo animae, cap. 2.

THEREFORE an Advocate who by superfluous delays, suborning of witnesses, offering of false instruments, or by false witnesses, or by other iniquitous and deceitful means alleging false laws, which he knows to be wholly false, causes the adversary of his client to lose a just cause, sins mortally against justice, and is bound to every damage emerging. So D. Bonaventura in speculo animae, cap. 2, ad finem, whom Nauarrus follows, summ. Lat. cap. 25, num. 29; Hostiensis in cap. calumniam de poenis; summa Confessorum, Lib. 2, tit. 5; Syluester V. Aduocatus, numero 4; Armilla, V. Aduocatus, num. 19; Filliucius tom. 2, tract. 40, in 8. praeceptum, cap. 10, num. 295; Tovecus Lib. 5, cap. 62; and others passim. It appears from cap. si quis autem, 3, quaest. 7, and from L. 3, Properandum, Cod. de Indice. The reason is that he does an injury to the adverse party, as S. Bonaventura argues, and with him Fagundez cap. 38, n. 18; but he who is the cause of injury to anyone with damage is bound to restore it, as appears ex cap. si sua culpa, de iniuriis, et damno dato.

HE CAN, however, if he has a just cause, deceive the adversary by prudently concealing what might impede the right of the adverse party, provided he abstains from lies and does not use other falsehoods. So D. Thom. quaest. 71, art. 3, ad 3; Caiet. there; Nauarrus, Syluester loco cit.; the Gloss in cap. ne quis, 22, quaest. 2, and in cap. Dominus noster, 23, quaest. 2; Fumus V. Aduocatus.

I ASSERT thirdly, that an Advocate can plead in a less probable cause too, in a capital cause, and one involving loss of all goods.

AND indeed, that an Advocate, abandoning the more probable, may follow the less probable, not only of law but also of fact, all teach, as Diana notes p. p. tract. 13, resol. 4; but they say he is bound to disclose to the party the lesser probability of his cause, otherwise he will restore to him the damages and expenses.

THE DIFFICULTY therefore stands: whether he may proceed even in a capital cause, and one involving loss of all goods, by defending the actor. For the negative side is maintained by Loui. de Cruz in direct. confess., part. 1, prac. 8, art. 5, dub. 1; Malderus prima secundae, quaest. 19, art. 5, disp. 86, assert. 8; Martinuz part. 21, tract. 1, quaest. 19, dub. 26, concl. cap. 3; and others with Soto lib. 5, quaest. 8, art. 3, because in doubt the condition of the possessor of the thing is better, and in doubt favor is to be shown the Defendant, as Bassaeus also says, V. Advocatus.

BUT the contrary opinion is held by Sanchez in summa, tract. 2, quaest. 74, art. 3; Lorca prima secundae, tract. 1, disp. 30, memb. 2; Villalobos tom. 1, tract. 1, diffic. 14; Diana loco cit.; Fagundez infra; Bass. loco cit.; Tannerus, disp. 4, quaest. 4, dub. 6, num. 117, citing Syluester V. Advocatus, quaest. 10, §. 3; Nauarrus man. cap. 25; Valentia quaest. 11, puncto 4; Azorius Tom. 1, lib. 1, cap. 17, quaest. 4; and Lessius lib. 2, cap. 31, dub. 9.

The REASON is that, if the Client could litigate in this case, therefore the Advocate also could defend.

For the ADVOCATE only upholds the side of one party, as far as reason goes, but does not declare the law or pronounce sentence.

Fagundez nevertheless ADDS, cap. 38, num. 15, that if little utility would accrue to the actor, he cannot be defended in such grave cases. So also Lessius lib. 2, cap. 31, dub. 9, num. 53; Filliucius tom. 2, tract. 40, cap. 10, num. 285. Therefore Tannerus, with others, adds: Unless Charity recall it.

THIS opinion seems to me, at least, to need limiting, because it is against Charity, at least, to intend another's death or ruin in this way.

WHETHER, however, in a doubtful cause the Advocate may protect.

The AFFIRMATIVE opinion is maintained by Malderus prima secundae, quaest. 19, art. 5, dub. 86, assert. 8; Lorca prima secundae, quaest. 39, memb. 2; Diana p. p. Tract. 13, resol. 6. The reason is that the Advocate does nothing but represent to the Judge the reasons of the party. The same maintains part. 4, Tract. 3, resol. 47, adducing Metellus Tom. 1, disp. 3, cap. 4, coroll. 6, num. 16, against Salas prima secundae, tract. 8, disp. unic., sess. 11, n. 108. Bassaeus subscribes loco cit.

Fagundez nevertheless ADDS num. 13 that he is bound to admonish the client, otherwise he cannot. So also Nauarros summ. Lat. cap. 25, numero 28; Syluester V. Aduocatus, numero 5. On these things see prima secundae, Tract. 1, disp. 17, quaest. 10.

I ASSERT fourthly, that an Advocate defending Defendants against the Fisc by frauds, and effecting by these that the Fisc not seize the client's goods, is not bound to restore that gain to the Fisc. So Lessius Lib. 2, cap. 31, dub. 8, num. 50; Filliucius num. 283; Sanchez Lib. 10, de matrim., disp. 8, num. 14; Fagundez Lib. 8, cap. 38, num. 10; and he derives it from Nauarrus, summ. Latinae cap. 18, num. 49.

The REASON is that a penalty is not owed except after the Judge's sentence has followed.

I ASSERT fifthly, that if the Advocate of the fisc, by negligence alone, at least grave, be the cause that the fisc does not uncover the truth for the despoiling of goods, he is not bound to restore this damage to the fisc, but only a proportionate part of the salary and of the expenses he incurred: so Filliucius loco cit.; Lessius num. 51; Fagundez num. 11.

I ASSERT sixthly; if an Advocate has so defended the Client that the accuser cannot prove the true matter and falls into the penalty of talion, he is not bound to restore damages to him, nor does he become irregular. So Lessius num. 52, against Nauarrus si furiosus, 2, part., §. 5; Salon 2, 2, q. 71, art. 3, controv. 1; Fagundez num. 22, against Nauarrus summa Lat. cap. 27, num. 209. The reason is that this evil is accidental, and he himself is not bound to uphold the Accuser's part.

BUT a great difficulty concerns the following question.