Question VI: Whether an advocate can receive gifts

Where a certain Honorarium or stipend for the office of Advocacy has been established by the Prince, or by custom, Advocates cannot receive anything beyond it; and if they receive, it will be subject to restitution. It is common among the Doctors; so D. Bonaventura, in speculo animae, cap. 2, §. Quartus fructus rapina; Filliutius, Tom. 2, tract. 40, cap. 10, num. 190; Navarrus, sum. Lat., cap. 25, num. 30; and it appears from what was said in the preceding disput., quaest. 3, and the disp. de Iudice.

The first part is proved by D. Thom., 2, 2, quaest. 71, art. 4, in corpore, and D. Bonaventura at the place cited, because when one is not bound to render something to another, he can justly receive something for its rendering; but on the contrary (and thus the other part is proved), when one is bound to exhibit something for a price, he exhibits nothing saleable. An Honorarium not fixed by law Bassaeus commends to each one's discretion, num. 7.

You will ask: Whether a stipend is owed to an Advocate who, in his own cause, pleaded against an adversary in a suit and drew up the writings.

Some deny it, because of that rule drawn from Leg. properandum, §. si autem alterutra, Cod. de iudiciis, on which Menochius, q. 74, de arbitriis adjudicates that the expenses are to be made by the loser which he made, not those which he did not make. So Paulus Castrensis infers, ad leg. finali, Cod. de fructu, et litium expensis.

Yet Valafius asserts the opposite, tract. 1, concl. 26, num. 23.

The reason is that the expenses made on the Advocate were for creating him an Advocate; nor should the Advocate's learning render him in a worse condition.

Moreover, the condemnation of expenses is made on account of the contumacy of the bad litigant, as appears from the said Leg. Properandum, and from the Doctors there. Therefore Fagundez subscribes to this, lib. 8, cap. 38, num. 31.

Fagundez notes at num. 39 that no one can plead against him from whom he has received some gratuitous benefit, or a liberal donation without defect, without the sin of an ungrateful mind — not if he pleads for himself, or for father or mother, or for his own cause, or for another miserable person; otherwise the donation can be revoked. The first appears from the final cap., de postulat.; the second from the Law Papinianus, ff. de inofficioso testam, and the final cap., de donationib.

I shall produce certain instructions for Advocates from D. Bonaventura, Lib. 1, Pharetra, cap. 26, from St. Gregory, homil. 7, in Ezech.: A just advocate in no way accepts unjust causes, nor consents to give words for injustice.

From the same, lib. 20, moral., cap. 15, on these words of Job 30: But now the younger mock me. In poverty and famine sterile, whose fathers I did not deem worthy to set with the dogs of my flock, who ate grass, and the bark of trees, and the root of junipers was their bread. The Vulgate continues: Who, snatching these things from the valleys, as soon as they had found anything, ran with a cry to them. The Hebrew: They cried out against them as against a thief.

The Vulgate continues: They dwelt in the deserts of the torrents, and in the caverns of the earth, or upon the gravel. Who rejoiced in such things, and esteemed it a delight to be under the brambles. Where the Hebrew reads: Among the shrubs they crept beneath the nettle. Where D. Gregory says: With a cry they hasten to meet whatever is found in the valley — from the occasions of causes arising, even to litigate for a wicked stock.

Now the most Excellent One SEEMS to urge Advocates to devote their aid to the poor even for a small alms, and to defend them gratis and faithfully; just as the Molossians defend the flock, and would have Mallow, their medicine, applied to their abscesses, and the nettles — that is, unpolished words — removed from them.

Then the Saintly Doctor cries out with D. Bernardus, Lib. 1, de consider.: Daily the Laws clamor in the palace, but the Laws of Justinian, not of the Lord. Wherefore he urges that they meditate in the law of the Lord: for the law of the Lord is unspotted, etc. But these are not so much laws as lawsuits, and the cavillations subverting judgment are of Advocates, who have taught their tongues to speak a lie: eloquent against justice: learned for falsehood: they are wise to do evil: eloquent to assail the truth. Such must not faithful Advocates be.

FINALLY he admonishes from the same D. Bernardus, Lib. 3, that they appeal not without cause: Unjust (he says) is every appeal to which the want of justice has not compelled. It is lawful to appeal, not that you may oppress, but lest you be oppressed. He who appeals when not oppressed, it is clear, either intends to oppress, or to redeem time.

From what has been said, gather the four conditions of a good Advocate: the first is sufficient knowledge; the second diligence; the third truth; the fourth justice, as Fagundez also relates, loco cit., num. 34; Bassaeus a num. 3, with others.

It is NOT lawful for an Advocate to contract with a Client for a portion of the matter in suit, Leg. si quis, Cod. de postulando, et Leg. sumptus, ff. de pactis, lest a way be opened for frauds to defeat suits. Yet it does not seem a sin, fraud removed, as Victorellus teaches, in manu; Navarrus cap. 25; Diana part. 2, tract. 2, miscell., Resol. 49; Valerius in differ. utriusque contract., diff. 3; Bassaeus num. 8. But he may contract for such a price, whether the cause be obtained or not; and then the Advocate is bound to pursue the whole cause.

But if by the client's fault the cause be cut off, he is bound to pay the whole price.

SEE Sayrus, lib. 12, cap. 23, num. 33; Sylvest., V. Advocat., quaest. 22; Azor, part. 3, lib. 13, cap. 29, dub. 10; Bonac., disp. 10, quaest. 3, punct. 4; Filliu., tract. 40, n. 293; Regin., lib. 25, num. 678; Rodriquez, part. 1 sum., cap. 4; Bassaeus, num. 9, where they add much.