Chapter — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
Chapter II. On the Obligations of the Advocate and the Procurator
- Principles. - I. Advocates and procurators are bound by commutative justice toward litigants to have competent knowledge, to undertake and pursue the cause with fitting diligence and study, and to forestall delays damaging to the litigants; otherwise they sin and are liable to restitution, as was said above about judges.
II. In civil matter neither the advocate of the accused nor the advocate general can licitly sustain a cause certainly unjust 1; therefore if by defending it he obtains an unjust sentence, he is bound to repair all damages following from it, if they are not repaired by those in whose favor the unjust sentence falls. - St. Ligorius, n. 223.
1 ** Note that these things are said about a civil cause; for it happens otherwise in criminal causes, when by the cares of an advocate the prince can at least be moved to mercy. See below, q. 1.
A fortiori in criminal matter neither can an advocate undertake the part of an evidently unjust accuser, nor can the procurator general pursue one unjustly accused, if he discovers his innocence either at the beginning or in the course or at the end of the cause; but each is bound to abandon the accusation begun.
III. An advocate, when consulted by a client, ought seriously to examine his cause, and with that diligence which the gravity of the matter demands, to keep faith with him, to disclose the justice or injustice of the cause, and scrupulously to indicate the probability of obtaining it or losing it; for otherwise he will impel the client to useless expenses, which he himself is bound to make good.
But in pleading a cause he must beware of frauds, false proofs, or other unjust means against the opposing party; for otherwise he is likewise bound to compensate all damages following from them.
- Questions. - QUESTION 1º. Can advocates defend causes even less probable, both of the accused and of plaintiffs?
Resp. 1º In civil causes, yes, with the common and certain opinion, because they can have hope that the truth will come to light. - St. Ligorius, n. 222; Laymann; Sanchez, against a few 2.
2 ** The authors warn (p. 926, n. 78) that to this response of the Author there must be added an exception, which St. Alphonsus (Bk. 4, n. 222) indicates in these words: “Nevertheless Lugo, Malderus, Diana, and Lorca apud the Salmanticenses (tr. 29, app. De Offic., ch. 4, n. 36) note that this runs if the probability is of law; for if it is of fact, even in equal probability (because then the accused must altogether be favored) they commonly say that it is not lawful for an advocate to support the plaintiff.”
Resp. 1º To this exception, which is taken from Lugo (On Justice and Law, disp. 41, n. 7), the authors could usefully have added another part of the exception, which St. Alphonsus omits, but the Salmanticenses (l.c.) obscurely enough, and Lugo clearly enough (ibid.) had expressed thus: “The same proceeds in a civil cause; for a plaintiff, knowing that he cannot prove against the possessor, but that the matter remains doubtful, acts unjustly and vexes him, since in doubt the cause of the possessor is better; therefore an advocate knowing that the matter always remains doubtful, and therefore that the judge ought to judge for the accused, cannot justly help the plaintiff seeking an unjust sentence.” But it is manifest that Lugo here treats of a negative doubt; this is clearer from what has been said elsewhere (disp. 37, nn. 113 and 122).
Resp. 2º The authors also would not have uselessly noted that in the cited text of St. Alphonsus, Malderus, Diana, and Lorca are not well alleged. For Lugo (l.c., disp. 41, n. 7) adduces them not for his own opinion, but for the contrary opinion. And this the Salmanticenses also note, saying (l.c.): “In such a case,” says Lugo against Malderus, Lorca, and Diana, “the advocate cannot licitly,” etc. Wherefore from the cited text of St. Alphonsus the word “commonly” could be removed without loss; since the opinion of Lugo is not common to Malderus, or Lorca, or Diana. Lugo (l.c.) cites no one for himself except Salas, and the Salmanticenses followed him, and afterward Roncaglia, and any others there may be. But besides Malderus, Lorca, Diana, and Merolla, whom Lugo reports as dissenting from himself, you will see very many others, whom Sanchez follows, dissenting from the opinion of Lugo, in the same Sanchez (Dec., bk. 1, ch. 9, n. 51).
Resp. 2º But in criminal causes the accused can always be defended, even if his culpability were established, yet by honest and licit means, lies, frauds, etc., being excluded. The reason is that an advocate defending the accused inflicts injury on no one, and besides, from his office, he ought to patronize the accused as much as he can. - St. Ligorius, n. 220.
- QUESTION 2º. To what is an advocate bound by reason of his fee or stipend?
Resp. 1º Generally speaking, he can accept nothing beyond what is just, which either perhaps has been fixed by law, or must be determined by the judgment of prudent men, taking account of the business, the skill of the advocate, the labor which he expends, and received custom.
Resp. 2º With regard to the poor in particular, 1º he is bound to assist gratuitously, even with grave inconvenience to himself, those who are in extreme necessity; 2º likewise he is bound to plead gratis for those who are in grave necessity, and indeed under mortal sin, though not with notable inconvenience to himself; 3º finally, even in common necessity he is bound from charity to protect the causes of the poor, but not with grave inconvenience; namely, it suffices that he bestow on them some work when he is free from others. - Hom. apost., tr. 13, n. 69.
QUESTION 3º. What can an advocate demand if, after agreement has been made about the stipend, the client abandons the cause already begun?
Resp. He can demand the whole, if it does not stand through him that he does not pursue the lawsuit, no otherwise than one hiring out his work for some wage can demand this, if it stands through the employer that the work is not completed. Except, however, if a just cause for abandoning the lawsuit intervened, since this condition is always understood in the agreement. - St. Ligorius, Hom. apost., tr. 13, n. 69.
- QUESTION 4º. To what is an advocate bound who, when the cause has already been completed, notices that it is unjust?
Resp. He must at once warn about the injustice of the cause, lest he cooperate in unjust damage. Nor can he counsel a composition, since this ought to have place only in a doubtful matter. But if he has knowingly pursued an unjust cause, he will be bound to compensate all damages occurring to each party. For he must restore to the opposing party from the sin of commission, since he himself was the positive cause of the damage; but to his own client, if he was in good faith, from the sin of omission, since from his office he was bound to warn him about the injustice of the cause. Nevertheless an advocate, by abandoning a cause which he detects to be unjust, ought not help the other party, or reveal the secrets of his own cause to the other party, as is clear from natural law, and as St. Thomas expressly teaches, 2.2, q. 71, art. 3.
QUESTION 5º. To what is an advocate bound who, noticing that the cause is unjust, does indeed warn the client, but, with him willing it, pursues the cause?
Resp. 1º He is bound to nothing toward the client, if he loses the cause, because injury is not done to one who knows and wills.
Resp. 2º He is bound, by title of positive cooperation, to compensate all damages which the opposing party suffers.
- QUESTION 6º. Whether and how does an advocate sin who defends a just cause by unjust means, for example, if he substitutes a new bond in place of the previous one lost, etc.?
Resp. 1º He sins against fidelity and truth, more gravely indeed or less gravely according to the character of the unjust means employed 3. The advocate will be guilty of a greater sin if he not only substitutes a new bond for the previous one, but supposes one which never existed. Nor can he be excused from the good end which he intends; for evils are not to be done that goods may come.
3 ** It is supposed here that it is established both to the client and to the advocate that the right wholly favors them. But it cannot but seem very hard that they must lose the cause merely because of the misfortune of a lost bond. Otherwise, the remedy employed is indeed rejected by the laws, as liable to frauds; but as to the substance of the cause no injustice appears. Therefore of itself it will be an officious lie. See below, n. 28, q. 2.
Resp. 2º Of itself he does not sin against justice, since the cause is supposed just. Nevertheless accidentally he can harm justice and be obliged to restitution, namely if damage comes from this to his own party or to the opposing party; for if, for example, the fraud is detected, it can easily happen that a cause however good is brought into suspicion and collapses.
- Resolutions. - 1º Advocates sin against justice toward the client if, when they are not sufficiently skilled and fit, they undertake causes to be defended; if they disclose the foundations or secrets of the cause to the opposing party, or if they serve each party; if, because they seem to themselves to bring forward peremptory arguments, they neglect other arguments not to be despised, because perhaps the judges would be moved by those neglected motives; if they do not prepare themselves sufficiently for pleading the cause, etc.
2º The same men sin against justice toward the opposing party if they cite false or abrogated laws, or bend them to an alien sense; if they employ deceit or lies, by which judges or jurors are drawn aside into an unjust sentence or vote; likewise if they impute false crimes or vices to the opposing party, etc.
3º Procurators of parties sin against justice if they prolong causes, if they obtain undue delays, if they do not procure in the first place a cause previously accepted, if they bring the parties to an unjust composition, etc.
4º The procurator general sins against justice if from negligence, from haste or prejudice, from hatred or acceptance of persons, etc., he brings an innocent man into detention, into trial, and into undergoing an unjust sentence. Likewise, if he has sustained the accusation after in the course of the cause he has recognized his innocence, or has gravely doubted of it; therefore he is bound for all damages subsequently suffered by the accused.
To this also pertains the office of the referendary, who is sometimes employed in explaining causes. Sometimes the acts of the litigants are committed to him to be discussed, so that afterward he may report their foundations, reduced as it were into a compendium, to the judges. From these things it is clear with how much knowledge, diligence, skill, and fidelity the referendary must excel, so that he may report causes in the due manner and rightly instruct the judges.