IV. On Advocates, Procurators, and Referendaries

What is an advocate, a procurator, a referendary? - An advocate is he who gives his assistance to litigants by counsel and by defense undertaken before the judge. But a procurator is he who, by mandate and in the name of the litigant, prosecutes the case in judgment. Finally, a referendary, or relator, is he to whom the acts of litigants are committed to be discussed, so that afterward he may report their foundations to the judges as if reduced into a compendium. L. 14 de Advoc. divers. iudicior. C.; L. 1 de Procur. ff.; L. 18 de Procur. C.; S. Th. 2. 2. q. 71. a. 1, 2. "To undertake the defense of another is a manly office, and it is established that it is beyond the female sex." L. 18 de Procurator. C. "Women will sometimes be permitted to act for parents, the cause having been known, if perhaps sickness or age impedes the parents, and they have no one who may act." L. 41 de Procurator. ff.

The procurator concerning whom we are treating here is an office well distinguished from a public or fiscal procurator, who is a person legitimately deputed to defend rights concerning the public good. Hence he acts sometimes for the plaintiff, sometimes for the defendant, sometimes for both. Such a procurator is, in matrimonial causes, the Defender of the bond; in causes of ordination and religious profession, the Defender of the validity of each; in causes of Saints, the Promoter of the faith.

The proper and native advocates of the S. Rota are consistorial advocates. Cf. Proper Law of the S. R., canon 44. Advocates of the S. C. of Rites for causes of Saints must be endowed with the regular title of rotal advocate, and are subject to other formalities prescribed by the same S. C.

What are the obligations of advocates in the defense of cases? - Advocates are bound first of all to have competent knowledge of laws, of the form of judgments, and of the manner of preparing instruments. Then they must diligently examine the case, manifest its justice or injustice and the certitude or probability of winning or losing it, guard against damaging delays, preserve fidelity, and finally defend the case, and only a just one, without lies, frauds, or other unjust means. The reason is that by legal justice toward society, and by commutative justice toward the client, they are obliged to defend his rights and guard against his damage, but toward the contrary party, lest they become cooperators in injustice. Wherefore, acting otherwise, they are held concerning damages. C. Si culpa ult. de Iniur.; L. 14 de Iudic. C.

S. Th. 2. 2. q. 71. a. 3.

You will resolve: Advocates sin against justice toward the client if, when they do not have due knowledge of the laws, they undertake cases to be defended; if they reveal the foundations or secrets of the case to the adverse party, or if they serve both parties; if, because they seem to themselves to bring forward peremptory arguments, they neglect others not to be despised, because perhaps the judges would be moved by those neglected motives; if they do not sufficiently prepare themselves to plead the case, etc. The same persons sin against justice toward the adverse party if they cite false or abrogated laws, or turn them aside into a foreign sense with damage to the adversary; if they use deceit or lies, from which judges or jurors are drawn away into an unjust sentence or vote; likewise if they impose false crimes or vices on the adverse party, etc. Wherefore they do not seem to sin if they ingeniously twist laws from their obvious sense so that the defendant may escape punishment. L. 226; S. Th. 2. 2. q. 71. a. 3; Kenrick 144.

Note: St. Thomas, l. c. ad 3, teaches that "it is lawful for an advocate defending a just case prudently to conceal those things by which its process could be impeded," because this would not be to deceive the adversary, but to allow him to deceive himself.

Is it lawful for an advocate to defend an unjust case? - In civil matter an advocate cannot licitly sustain a certainly unjust case. Wherefore if the laws favor one doing injustice, on account of some defect, for example, of a document or instrument, the advocate cannot patronize him, unless perhaps so that he may free him from useless and damaging vexation, for instance if a debtor cannot pay, nevertheless with him warned that for this reason he is not released from the natural obligation, and unless for that reason he is no longer going to fulfill it.

Much more, in criminal matter he cannot undertake the parts of an evidently unjust accuser. The reason is that, as St. Thomas says, 2. 2. q. 71. a. 3, "it is unlawful for someone to cooperate in doing evil, whether by counseling or by helping, or by consenting in any way whatever; because one counseling and aiding is in some way doing. And the Apostle says, Rom. 1, 32, that they are worthy of death, not only those who do sin, but also those who consent to those doing it. Hence all such persons are bound to restitution. But it is manifest that an advocate furnishes help and counsel to him whose case he patronizes. Hence, if he knowingly defends an unjust case, without doubt he sins gravely and is bound to restitution of that damage which the other party incurs against justice through his help. But if he ignorantly defends an unjust case, thinking it to be just, he is excused according to the mode by which ignorance can be excused." L. 14 C. de Iudiciis; Kenrick 141.

You will resolve: An advocate who, after the case has already been undertaken, notices that it is unjust, must at once warn his client concerning the injustice of the case and abandon it. Otherwise he will be held for all damages coming to either party. If nevertheless the client is in bad faith, this client is bound first to restore, as commanding. But if he does not restore, then in the second place the advocate is bound to restore, namely as executor. "Nevertheless he ought not betray it, namely so that he helps the other party, or reveals the secrets of his own case to the other party." S. Th. l. c. ad 2. The first is against fidelity, the other against the strict obligation of secrecy. They except: unless for that reason the other party would have to suffer grave and unjust detriment. Cf. La-Croix l. 3, p. 2, n. 1231; Lugo d. 37, n. 183. But the advocate can induce his client to a settlement, yet, as St. Thomas says, l. c., without damage to the adversary. Wherefore he would sin gravely if he should induce him whose case he notices to be evidently unjust to a settlement. For in such a case no place is given to settlement. A general procurator sins against justice if from negligence, from precipitation or prejudice, from hatred or acceptance of persons, etc., he drags an innocent person into detention, into judgment, and into undergoing an unjust sentence. Likewise if he sustains an accusation after, in the course of the case, he has recognized innocence, or has gravely doubted concerning it; hence he is held concerning all damages subsequently coming to the accused.

Can advocates defend cases, even less probable ones, both of defendants and of plaintiffs? - R. Affirmatively in civil cases; because, as matters of this kind are litigious, there can reasonably be hope that the truth may shine forth. Besides, since the judge can divide the thing according to the proportion of greater or lesser probability, it is lawful for advocates to urge the probable reasons of clients, so that he may decree what is just according to the things alleged and proved. Cf. 18. Nevertheless the client must be warned of the doubtful outcome, lest perhaps he make the expenses of the lawsuit uselessly.

In criminal cases the defendant can always be defended, even if his culpability is established. The reason is that an advocate defending a defendant inflicts injury on no one, and from his office he protects the right of the defendant, lest he be condemned before the crime has juridically been fully proved, and at least so that the Prince may be moved to mercy. "In a doubtful criminal case it is not lawful to protect the parts of the plaintiff, who in such a case sins gravely against the defendant, therefore also the advocate; nor when the plaintiff acting against the possessor knows that he can prove nothing, but that the matter will always remain doubtful, because then the possessor is unjustly vexed, for whom the judge at last will have to judge." L. 220. Hence, if he patronizes the defendant, it suffices that the exception be just in the exterior forum; but if he patronizes the plaintiff, the case must be just also in the forum of conscience. Kenrick 145 judges otherwise, namely that he can defend the plaintiff if the matter is doubtful; but with no reason brought forward.

Whether and how does an advocate sin who defends a just case by unjust means, for example, if he substitutes a new promissory note in place of an earlier one that has been lost, etc.? - He sins against fidelity and truth. For it is an officious lie. And this lie is grave, because it is to the grave damage of public order, public faith, and security. Hence notaries who prepare such a document also sin gravely. "To say grave lies in judgment is against the common good, since it is to pervert the whole order of justice." L. 1. 5, n. 277. In itself he does not sin against justice if the right of the client is certain. For no injustice appears as to the substance of the case. Certain; for if that right is doubtful, and through the promissory note it is rendered certain, namely because a promissory note is supposed which never existed, he would indeed sin against justice. For since every probability is destroyed by certitude, the right of the adverse party would be injured. But accidentally he can sin against justice if from this damage comes either to the adverse party or to his client. Sometimes he can sin gravely against charity toward himself, if he exposes himself to proximate danger of the gravest penalties because the falsity is discovered. S. Th. 2. 2. q. 71. a. 4 ad 3.

To what is an advocate bound by reason of the honorarium or stipend? - An advocate, as also a physician and others, can licitly and justly exact an honorarium or stipend for his work. "Augustine says that an advocate licitly sells just patronage, and a jurist true counsel.... It must be said that those things which someone is not bound to furnish to another, he can justly receive compensation for furnishing them. But it is manifest that an advocate is not always bound to furnish patronage, or to give counsel to the cases of others. And therefore, if he sells his patronage or counsel, he does not act against justice. And the same reason holds concerning a physician bringing help for healing, and concerning all other persons of this kind, provided nevertheless that they receive moderately, with the condition of persons, and of affairs, and of labor, and the custom of the country considered. But if through improbitas they extort something immoderately, they sin against justice. Hence Augustine says to Macedonius that things extorted by these persons through immoderate improbitas are customarily demanded back, but things given through tolerable custom are not customarily demanded back." S. Th. 2. 2. q. 71. a. 4 c.

Moreover, generally speaking, he can receive nothing beyond the just honorarium, which is determined either by law, or by custom, or by the judgment of prudent men, or by agreement of the parties, with account had of the business, labor, and skill of the advocate. If he has an annual stipend, he can receive it, although lawsuits do not occur in that year. For it is as it were an aleatory contract, whether the lawsuits are many or none. If during the time of the lawsuit he is sick for a longer time, unless he substitutes another, he must renounce part of the stipend which was established by agreement. Those who make an agreement with clients that they will ask nothing beyond the expenses made, unless they win the case, and that a greater fee is to be given to them if they win, can exact this, especially if the case is of a very doubtful outcome, by reason of the aleatory contract. If, after agreement has been made concerning the stipend, the client abandons the case begun, the advocate can exact the whole, if it does not stand through him that he does not prosecute the lawsuit; not otherwise than one renting his work for some fee can exact this, if it stands through the hirer that the work is not completed. Except, however, if a just cause intervened for abandoning the lawsuit, since this condition is always understood in the agreement.

By positive Roman Law he cannot, while a case is being treated, establish a fee, nor establish as a fee a proportional part, for example, a third, a half, of the goods concerning which the lawsuit is conducted. This prohibition rests upon a presumption, not of fact, but of danger of fraud, namely of procuring victory even by illicit means. Hence it obliges even if the contrary has been done. But if injustice and fraud are absent, if there is an urgent and just cause for such an agreement, and if the advocate has asked an unjust fee, he is not obliged to restitution.

According to C. I. 1458, "judges, public officials of the ministry, chancellors, ushers, advocates, procurators or patrons, and notaries cannot be assignees of lawsuits, of reasons, and of litigious actions of the competence of the court, tribunal, or praetorship of which they are part, or in whose jurisdiction they exercise their functions, under penalty of nullity, damages, and expenses. Excepted is the case in which it concerns hereditary actions among coheirs, or assignments in satisfaction of creditors, or for defense of goods possessed. Moreover, advocates and procurators can neither by themselves nor through an interposed person establish any agreement with their own clients, nor make with them any contract of sale, donation, exchange, or another similar contract concerning the things comprehended in the cases in which they furnish their patronage, under penalty of nullity, damages, and expenses." C. G. 1597; C. H. 1459.

Although he spontaneously offers himself to treating the lawsuit of a relative or friend, nevertheless he can exact a just remuneration. Yet, if from charity he is bound to assist the poor, he is especially bound toward those joined to him, according to that saying 1 Tim. 5, 8: If anyone does not have care of his own, and especially of those of his household, he has denied the faith. As regards the poor in particular, he is bound to assist gratuitously, even with grave inconvenience to himself, those who are in extreme necessity. Likewise he is bound to patronize gratis those who are in grave necessity, and indeed under mortal sin, yet not with notable inconvenience to himself. Finally, even in common necessity he is bound from charity to protect the cases of the poor, yet not with grave inconvenience; namely, it suffices that he bestow something of his work on them when he is free from others. Then the judge provides for the defendant by commanding one of the advocates who act in that tribunal to defend the accused gratis. But the aforesaid necessity is present when the defendant, unless aided by patronage, is going to lose the case, or be punished with an unjust death, or be despoiled of his goods and reduced into grave poverty. The same also holds concerning physicians, notaries, procurators, and others who discharge a public office of this kind. L. 53 de Pact.; C. I. 1458; Lugo d. 41, n. 12; L. H. A. tr. 13, n. 69, 70; S. Th. 2. 2. q. 71. a. 1, 4; q. 32. a. 5.

Advocates before the S. Rota and the Apostolic Signatura are bound to furnish gratuitous patronage or gratuitous assistance to those to whom the S. Rota or Apostolic Signatura has granted this benefit. It is wicked for the same persons to buy a lawsuit, or to bargain concerning an extraordinary emolument or an immoderate part of the litigious thing vindicated to themselves. If they have done these things, besides the nullity of the agreement, they can be punished by the S. Rota with a suitable penalty. They can be marked with a note of reprehension, punished with a monetary penalty, suspended, or even struck from the register of advocates. Proper Law of the S. R. R., canon 45.

What are the qualities and obligations of a procurator? - As in an advocate, so also in a procurator there is required, besides knowledge, due diligence in the treatment of affairs, fidelity, and justice, which is also to be observed in exacting an honorarium. The reason is that, as the office of procurator is almost equated with the office of advocate, so also are the obligations.

You will resolve: Procurators of the parties sin against justice if they prolong cases, if they unduly obtain delays, if they do not procure in the first place the case previously accepted, if they lead the parties to an inequitable settlement, etc.

If a procurator has an advocate or a tabellion who serves him gratis, can he retain for himself the just stipend owed to them? - R. Negatively, if he serves for the sake of the client; affirmatively, if for the sake of the procurator himself. The first reason is clear, because he has no just title of acquiring that stipend. The second reason also is clear, because to do by oneself or by another is morally the same thing: if he did by himself the useful thing, he could indeed retain the just stipend; therefore also if he does it through friends. L. 239.

What are the qualities and obligations of relators? - Relators must first rightly know the things which pertain to their proper office; then they must apply the necessary diligence, so that they may satisfy them. Otherwise the damages that will come will deservedly be imputed to them, since they voluntarily undertook so great an office while unskilled, or exercised it negligently.

You will resolve: "A relator sins 1. if from lack of study or through carelessness he reports badly, or omits something substantial; 2. if he is partial and attempts to explain the justice of one party more than that of the other; 3. if he manifests the sentence to either party before it is published, from which grave inconveniences can follow, for example, the judge may be rejected, etc." L. 238.