Article III: On Advocates

S. Th. II-II, q. 71.

643. The duties of an advocate as regards the cause. An advocate or pleader is one who has undertaken the cause of litigants to be defended in judgment. He furnishes this both by giving suitable counsels and by pleading the cause before the judge, whether orally or in writings, according as the custom of the region bears. Hence he must excel in competent knowledge, in the same way as was said concerning the judge; otherwise he would expose himself to the danger of inflicting damage upon him whose cause he defends.

Now, as regards the cause, he has a threefold duty:

1. He cannot undertake a cause to be defended unless he has competent knowledge for this; otherwise he exposes himself to the danger of harming the cause and the client;

2. He cannot defend a cause unless it is just; otherwise he exposes himself to the danger of harming and inflicting damage at least upon the other party; and therefore he cannot be absolved who is prepared to defend any causes whatever;

3. He cannot defend even a just cause except by just means; otherwise he exposes himself to the danger of inflicting damage both upon the client and upon the other party.

Hence A. in a civil matter, an advocate:

a) Cannot undertake a cause which he certainly knows to be unjust: for if he wins, he unjustly cooperates in the damage which is inflicted upon the opposing party; if he is defeated, he inflicts damage upon his client, who incurs useless expenses (a. 3 and ad 1).

b) Therefore, if in the course of a judicial process he certainly knows that the cause which he had undertaken in good faith to defend is unjust, he must abandon it and warn the client concerning this (ad 2).

c) But if the cause is doubtful from the beginning, the advocate can undertake it, with the client having been warned, since tribunals have been instituted precisely for settling controversies; and elsewhere a cause which at the beginning seemed doubtful can in the course of the process become certainly just.

d) While the cause remains doubtful, the advocate can advise a friendly settlement; but when it appears certainly unjust, he cannot settle at least with damage to the adversary, but nothing now remains except that the cause be abandoned (ibid.).

B. In a criminal cause, an advocate:

a) Can licitly defend the accused, even if it is certain that he is harmful and culpable; indeed, among civilized peoples the custom has prevailed that an advocate be assigned to every accused person. Hence such a cause is just, if not by reason of the matter, at least by reason of the precept of law, by which the accused has a right to an advocate: for the common good demands that an apt defense be procured for anyone cited into judgment. And therefore the advocate can help the accused by the legitimate means which are available to him, but not by unjust or dishonorable means.

b) But he cannot licitly protect the parts of the accuser, if the accused is certainly or very probably innocent: for thus he would unjustly cooperate in the unjust condemnation of an innocent person, or expose himself to this danger.

C. In a cause both civil and criminal, an advocate:

a) Can hide those things by which his cause is impeded, indeed in a criminal matter he can also deny in the same way as the accused (n. 641), whose parts he plays and whom he represents (ad 3).

b) But he cannot licitly use unjust or dishonorable means, such as frauds, false witnesses or documents, indeed neither can he use lies, because fraud and deceit ought to patronize no one (ibid.).

c) Hence he cannot insist upon these if they are produced; but in a civil matter he cannot fail to produce those things which must be produced.

d) And if an authentic document has been lost, he cannot substitute for it a fraudulent copy: for this is a lie, which is also forbidden by law, lest a way be opened to all frauds with great public detriment.

An advocate who has unjustly inflicted damage, whether upon the client or upon the opposing party, is held to repair it.

644. The duties of an advocate toward the client. An advocate, by force of his office, is held to plead diligently and faithfully the cause which he undertakes.

1. Before he undertakes the cause, he must:

a) Diligently examine whether he is capable of patronizing it; otherwise let him take care to refer it to one more expert;

b) Examine the cause itself with that diligence which the gravity of the matter requires, then sincerely warn the client concerning the justice or injustice of the cause, and also concerning the probability of winning or losing, so that the client, thus duly instructed, can avoid useless expenses.

But if the advocate culpably omits these things, he is held to repair the damages which certainly followed from this.

2. After he has undertaken the cause, he must expedite and defend it diligently, with that diligence and fidelity which prudent men are accustomed to employ in a similar business. Hence he sins gravely:

a) Who is notably negligent in considering the cause, reading the documents, approaching the judges, developing the arguments, etc., and on this account exposes the client to the danger of incurring grave damage;

b) Who deliberately handles the cause badly, so that he may favor the other party, or deserts a lawsuit already begun so that he may patronize the opposing party (which is also prohibited by civil law), or reveals secrets to the other party, even if he now holds the cause deserted by him to be certainly unjust (ad 2).

An advocate who from culpable negligence or deliberately has inflicted damage must repair it.

3. After he has defended the cause or given counsel in it, he can exact a just stipend (a. 4). This is to be determined by prudent estimation, "with consideration of the condition of persons, and of affairs, and of labor, and of the custom of the fatherland" (a. 4); hence it can moderately increase with greater skill or labor of the advocate; on the contrary, if the client, even with a price agreed upon, desists from litigating for a just reason, it must now be diminished: for then the price is not owed, but only compensation for the labor already expended. But if the advocate extorts something immoderately through dishonesty, he sins against justice (a. 4).

As regards the mode of defining the rate of the due price, the principles handed down for assessing the stipend of physicians come to be applied here (n. 381), as also those things which we said there concerning the gratuitous assistance of the poor. Namely, in extreme necessity an advocate is held to defend a poor man gratuitously even with grave inconvenience; likewise in grave necessity with light inconvenience; but in common necessity under light obligation only, when another is lacking and it can be done without inconvenience.