Case II: The Case of a Catholic Lawyer

Titius is a conscientious Catholic and a lawyer of considerable ability. In the practice of his profession, he is often called upon to defend persons who are being prosecuted in the courts for some crime. Now it sometimes happens that Titius knows, even before the case comes to trial, that his client is guilty and that he deserves to be punished; nevertheless Titius accepts the conduct of the case, because he has a special aptitude for such cases, and because he receives larger fees for them, than for the conduct of civil cases.

But on the other hand, he has serious scruples about defending such persons, because he thinks it is against the best interests of the community, tending to breed contempt for the law, and affording a more or less sure escape from the consequences of its transgression.

Question. How is he to be advised?

Answer. “In the interests of the proper administration of justice,” says William Lecky, “it is of the utmost importance that every cause, however defective, and every criminal, however bad, should be fully defended, and it is therefore indispensable that there should be a class of men entrusted with this duty. It is the business of the judge and of the jury to decide on the merits of the case, but in order that they should discharge this function it is necessary that the arguments on both sides should be laid before them in the strongest form. The clear interest of society requires this, and a standard of professional honor and etiquette is formed for the purpose of regulating the action of the advocate. Misstatements of facts or of law; misquotations of documents; strong expressions of personal opinion, and some other devices by which verdicts may be won, are condemned; there are cases which an honorable lawyer will not accept, and there are cases in which, in the course of a trial, he will find it his duty to throw up his brief.”

It can not be denied that the profession of an advocate is fraught with many moral dangers. It is more difficult and more dangerous than that of either judge or jury. Dr. Arnold thought that it led inevitably to moral perversion, involving as it does the indiscriminate defense of right and wrong, and in many cases the known suppression of the truth. It is said that on the feast of St. Yves, a saint of Brittany and a lawyer, that the people chant: Advocatus et non latro—Res miranda populo. Indeed, it was this aspect of the calling, that drove St. Liguori from the law to the Church. Volumes have been written, both by non-Catholics as well as Catholics, on the duties and obligations of advocates, some allowing him a large measure of freedom in the conduct of civil and criminal cases, and others restricting him to cases that he believes to be just.

Without entering into a discussion of the merits of these several views, as held by these authors, many of whom are men of great - ability and high character, we shall confine ourselves to a short statement of the accepted doctrine of Catholic moralists, regarding the duties and practices of advocates.

First of all, moral theology lays down the general principle that it is not lawful for a lawyer to accept any cases not founded in justice, nor to defend them by any other than just and honest means. If a lawyer were permitted in conscience to accept a dishonest case or to defend a just case by unjust means, then he would be permitted in conscience to do an injury to the party opposed to him. For the party opposed to him, whether it be the state or an individual, has a prior claim or right, rooted in the law of nature, that he shall not be injured in his person or in his goods, without just cause, nor by any other than just and honest methods.

After laying down this general principle, the moralists distinguish between civil and criminal cases, and they allow more freedom in the conduct of the latter than in that of the former. In regard to civil cases, no lawyer is allowed in conscience to accept a case which he knows for certain to be unjust. The reason is quite evident. An unjust case is an attempt to do another an injury. If the injustice of the case is known beforehand, then the plaintiff wilfully endeavors to do an unwarranted injury. The lawyer who accepts such a case, cognizant of its injustice, co-operates with the plaintiff. If he succeed in gaining his suit, he actually does the injury, knowingly and willingly, and is bound in conscience to make reparation. If he lose his case, he injures his own client by putting him to unnecessary expense, in prosecuting a case which he knew to be worthless.

If during the course of the trial the attorney discovers that the case is an unjust one, and if successful, will inflict an injustice on the defendant, he must secretly admonish his client to withdraw the case, or else he must throw up his brief. This is precisely the line of conduct followed by one of the most distinguished lawyers and conscientious Catholics in the United States. In the course of a trial, some time ago, he suddenly discovered that his client was endeavoring to cheat the defendant out of a large sum of money. He immediately informed his client in secret that he must compromise the case for one dollar, or he would expose him. We will say here, in passing, that we believe, with most theologians and many laymen, that a lawyer, like a physician, is justified in exposing a client or patient who is wilfully endeavoring to injure an innocent person, if after having been secretly admonished to desist, the client or patient still perseveres in his evil intent. If the justice of the case which the lawyer is asked to accept, is in doubt, the lawyer may accept it, after an understanding with his client. Because the courts exist for the purpose of settling controversies, and the justice of a case, that in the beginning seemed doubtful, may, during the progress of the trial, become altogether evident. Thus it is said that Sir Matthew Hale, the distinguished English barrister and judge, had determined never to accept a case which he did not believe to be just, but was led to relax this rule, having found in two instances that cases which at first sight seemed wholly worthless were in truth well founded.

In criminal cases, a lawyer may defend a guilty person, although he is fully advised beforehand of the guilt of his client. In fact, it is so necessary for the safeguarding of justice that a criminal be defended by counsel, that where the accused is not able to retain legal help, the same is assigned him by the court. The requirements of the law are thus better subserved and the accused is protected in his rights.;

It is a basic principle of our law, that every accused person is held to be innocent until proven guilty. Such a person is permitted by the law to defend himself against every accusation, be it ever so well founded in fact, provided only he make use of no lie or fraud or false document or other unjust means in his defense. And all this his counsel may do for him. Eventually the administration of justice is best promoted by this course.

Truth is best elicited and difficulties are most effectually disentangled by the opposite statements of able men. But under no circumstances is a lawyer in a criminal case allowed to use unjust means in defending his client. He is not allowed to tell lies to the judge, nor to produce false witnesses, nor to use spurious documents; because means that are dishonest in themselves are not made honest by reason of the end for which they are employed. Hence, if an authentic document, v. g. a will, is lost, the lawyer is not allowed to substitute a counterfeit document in its stead. While this would not be a sin against commutative justice, requiring restitution, it would be a grievous sin against the truth.

In the case of Titius therefore, we say that he is justified in accepting the defense of persons whom he knows to be guilty. And having engaged to defend them, he must defend them to the best of his ability. Only his methods of defense must be just and honest. It is the privilege of the accused under the law, that even though he be guilty, his interests be protected by able counsel, and the lawyer who defends him contributes to the better and more equitable administration of justice, and to the protection of the rights and interests of the citizens. “But necessary and honorable as the profession may be, there are sides of it which are far from being in accordance with an austere code of ideal morals.”