CHAPTER II: ON THE OBLIGATIONS OF AN ADVOCATE AND PROCURATOR

1060. • An advocate (Counsel, Counsellor, Advocate, Lawyer, Barrister) is called he who furnishes his assistance to litigants either by counsel, or voice, or writing.

A procurator - one is of the parties (Attorney, Attorney at Law, in chancery Solicitor) and appears in the name of his client, and prepares all instruments of the lawsuit by which the advocate can conduct the matter, - another is of the State (Attorney-General, State's Attorney, Solicitor) and represents the State in causes either civil or criminal.

Principles. - I. Advocates and procurators are held from legal justice toward society, and from commutative justice toward litigants, to have competent knowledge, to undertake and prosecute a cause with due diligence and study, and to prevent delays damaging to litigants; otherwise they sin, and are liable to restitution, as was said above concerning judges.

II. In civil matter neither the advocate of the defendant nor the procurator of the State can licitly sustain a certainly unjust cause; therefore if, by defending it, he obtains an unjust sentence, he is held to repair all damages following thence, if they are not repaired by those in whose favor the unjust sentence falls.¹

A fortiori in criminal matter neither can an advocate undertake the parts of an evidently unjust accuser, nor can the procurator of the State pursue one unjustly accused, if he detects his innocence either at the beginning, or in the course, or at the end of the cause, but each is held to abandon the accusation begun.

III. An advocate, when questioned by a client, must examine his cause seriously, and with that diligence which the gravity of the matter demands, preserve fidelity toward him, open the justice or injustice, and scrupulously indicate the probability of obtaining or losing it; otherwise he will impel the client to empty expenses which he himself is held to repair.

But in pleading the cause he must beware of frauds, false proofs, or other unjust means against the adverse party; for otherwise likewise he is held to compensate all damages following thence.

Query 1° In what sense must the INJUSTICE of a cause which an advocate cannot sustain be understood, namely MORAL, or only LEGAL?

Resp. Far more probably moral, and not only legal. Thus St. Alphonsus.² For to the question: "When the client has a good right in the cause of possession, yet not in ownership, whether it is licit for an advocate to defend him in a possessory cause?" he responds:¹ "Others say that it is licit for an advocate to defend such a client, because then he only permissively cooperates with the sin of the client, since in that case he exercises the function of a counselor before the judge. But Lugo Disp. 41" de Just. "n. 10 with Molina, Fagundez, Medina, etc., contradicts more truly. The reason, because just as the client sins by retaining the thing, so the advocate sins by cooperating with him in such retention; but the advocate does not stand on the part of the judge, but of the client."

Therefore an advocate sins by furnishing his service to a party whom he knows to elude the certain right of the adverse party by opposing to this either some vice, or defect of title or instrument, or prescription to which good faith is lacking. Yet an advocate is not held to inquire from the client concerning the moral justice of his cause, and he will be able to sustain this so long as he is ignorant of its moral injustice.

1061. Questions. - Query 2° Whether advocates can defend causes even less probable both of defendants and of actors?

Resp. 1° In civil causes of defendants, or, if it is a question of probability of law, also of actors, affirmatively, with the common and certain opinion, because they can have hope that the truth may shine forth. But if it is a question of probability of fact, even equal, it will not be licit to defend the cause of the actor.²

Resp. 2° But in criminal causes, the accused can always be defended, even if his culpability were clear, yet by honest and licit means, namely with lies, frauds, etc., excluded. The reason is that an advocate defending an accused person brings injury to no one, and besides from his office ought to patronize the accused as much as he can.³

1062. • Query 3° To what is an advocate held by reason of the honorarium or stipend?

Resp. 1° Generally speaking, he can accept nothing beyond the just amount, which either perhaps has been taxed by law, or is to be determined by the judgment of prudent men, with account had of the business, the skill of the advocate, the labor which he expends, and received custom.

Resp. 2° As to the poor in particular, 1° he is held to aid gratuitously, even with grave inconvenience to himself, those who are in extreme necessity; 2° likewise he is held to patronize gratis those who exist in grave necessity, and indeed under mortal sin, yet not with notable inconvenience to himself; 3° finally even in common necessity he is held from charity to protect the causes 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.

Query 4° What can an advocate exact if, after agreement has been made concerning the stipend, the client abandons the cause begun?

Resp. He can exact the whole if it does not stand through him that he does not prosecute the lawsuit, no otherwise than one renting his work for some wage can exact this if it stands through the conductor that the work is not completed. Yet except if a just cause of abandoning the lawsuit intervenes, since this condition is always understood in the agreement.¹

1063. • Query 5° To what is an advocate held who, after the cause has already been undertaken, notices that it is unjust?

Resp. He must at once warn concerning the injustice of the cause and abandon it, lest he cooperate with unjust damage. Nor can he advise settlement (n. 1051), for this is licit only in a doubtful matter. - But if knowingly he has prosecuted an unjust cause, he will be held to compensate all damages occurring to each party. For he must restore to the adverse 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 office he was held to warn him concerning the injustice of the cause.

Yet an advocate, by abandoning a cause which he detects to be unjust, ought not to aid the other party, or reveal the secrets of his own cause to the other party, as is clear from natural law, and St. Thomas expressly teaches.² A certain exception, which however will be present very rarely, see, if you wish, in St. Alphonsus.³

Query 6° To what is an advocate held who, noticing that a cause is unjust, indeed warns the client, but, with him wishing it, prosecutes the cause?

Resp. 1° He is held to nothing toward the client if he loses the cause, because no injury is done to one knowing and willing.

Resp. 2° He is held to compensate all damages which the adverse party suffers by title of positive cooperation.

1064. • Query 7° Whether and how an advocate sins who defends a just cause by unjust means, for example if he substitutes a new note in place of a former lost one, etc.?

Resp. 1° He sins against fidelity and truth, more gravely indeed or less gravely according to the measure of the unjust means applied, and according to the gravity of the matter about which there is question, and likewise according to the gravity of the effect which follows upon the use of the unjust means. The advocate will be guilty of a greater sin if he not only substitutes a new note for the former one, but supplies that which never existed. Nor can he be excused from the good end which he intends; for evil things are not to be done that good things may come.

Resp. 2° Of itself he does not sin against justice, since the cause is supposed just. Yet accidentally he can injure justice and be obliged to restitution, namely if from this damage comes to his own party or to the adverse party; for if, for example, the fraud is detected, it can easily happen that a cause good in some way is brought into suspicion and collapses.

1065. You will resolve. - 1° Advocates sin against justice toward the client if, when they are not sufficiently skilled and suitable, they undertake causes to be defended; if they detect the foundations or secrets of the cause to the adverse party, or if they serve each party; if, because some arguments seem to them peremptory, they neglect to bring forward others not contemptible, because perhaps judges would be moved by those neglected motives; if they do not prepare themselves sufficiently for pleading the cause, etc.

2° The same sin against justice toward the adverse party if they cite false or abrogated laws, or bend them aside to an alien sense, apply deceit or lies, from which judges or jurors are drawn aside into an unjust sentence or vote; likewise if they impose false crimes or vices on the adverse party, etc.

3° They sin likewise "by advising the client to swear falsely, or by as it were casting him into the necessity of perjuring, by indicating that otherwise there is no hope of victory, or by seeking out false witnesses, and instructing them to perjure by a certain discipline and training before the public examination, as is sometimes done."¹

4° Procurators of the parties sin against justice if they draw out causes, if they obtain undue delays, if they do not procure in the first place a cause earlier accepted, if they lead the parties to an unjust composition, etc.

5° The procurator of the State sins against justice if from negligence, from haste or prejudice, from hatred or acceptance of persons, etc., he brings 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 cause he has recognized innocence, or has gravely doubted concerning it; therefore he is held concerning all damages following upon the accused. Likewise if he delays the exercise of his office with injury to citizens, by hope of greater profit; but what he has procured by arts of this kind he is held to restore.