Question Fourth. On the Advocate

735. An advocate (causidicus) is one who undertakes the defense of some party's cause in judgment. Similar is the office of the procurator, who in the name of the litigant protects the cause in judgment.

The obligations of an advocate as regards sufficient knowledge and due diligence in conducting causes agree with those things which were said above concerning the judge. Therefore if he undertakes a cause for conducting which he knows himself unequal, and by his lack of skill or care inflicts damage on his client, he is bound to restitution, unless the client, conscious of this lack of skill, nevertheless had recourse to him. There remain the obligations which refer to the justice of the cause, to fidelity toward the client, and to a just price.

736. On the justice of the cause to be defended. 1. Concerning a civil cause. a. He cannot undertake a civil cause which he certainly knows to be unjust; but he can undertake a doubtful cause, even that for which the lesser probability stands: for it often happens that a cause which at the beginning seemed doubtful or less probable is shown in the course of the process to be more probable or even certain.

b. If in the course of the process he certainly knows the injustice of the cause undertaken, he must abandon it; nor in this case can he advise a composition, which cannot have place except in a doubtful cause: for he would inflict damage on the opposing party. If from the will of the client he nevertheless pursues an unjust cause, he is bound to repair the damage inflicted on the other party, like a mandatary of an unjust action.

c. In defending a cause he cannot use anything except just means, lest he induce the judge to render a false sentence; but he can conceal those things by which his own cause could be impeded, because he does not deceive the other party but permits him to be deceived. If he wins by unjust means, for example by bringing false or abrogated laws, by producing false witnesses, by bringing false documents, etc., he is bound to repair the damage inflicted on the injured party; primarily indeed if he acted without the mandate of the client, but secondarily if he acted from the mandate of the client.

He can be bound from charity to warn the opposing party concerning circumstances which could help his cause but which he himself either does not know or does not attend to; by justice he is by no means bound.

2. In a criminal cause he can defend the defendant, even if he certainly knows him to be guilty, provided he abstains from all fraud, deceit, and illicit means: for since the defendant is not bound to punishment unless convicted, by the right of defense he can take care that the force of the proofs be weakened and that certain demonstration of the crime be impeded.

It is never lawful to use a false document in judgment. To determine the malice of this thing one must distinguish.

a. If the right of the client is not yet certain, it is a sin against truthfulness and against justice, because by an unjust means he impedes the other party from obtaining a sentence favoring him.

b. If the right of the client is certain and the document previously existing was lost, the substitution of a new document is a lie, but it is not a sin against justice. Indeed, if the right of the client is certain, even if the document which is brought forward to defend the certain right is wholly fabricated, a sin against justice is not committed, but against truthfulness by lying.

c. In either case, however, one can sin against charity, because those acting thus expose themselves to the danger of undergoing a most grave penalty if the fraud is detected;¹ indeed the lie, according to Lehmkuhl (I, n. 824), is gravely harmful against the public good.

¹ Ballerini-Palmieri IV, n. 608.

737. On fidelity toward the client. a. He is bound to examine the cause diligently and to warn the client about the cause, namely about its injustice, certainty, or probability, and to declare to him the state of the cause, if he himself demands this or if it changes notably, lest he be induced to useless expenses. If he omits this with grave fault, he is bound concerning the damages which come to the client from this omission.

An advocate who does not warn the client concerning a doubtful cause and loses it must repair the damage of the client if it is established that he would not have pursued the doubtful cause; but he is not bound to repair the damage if it is doubtful whether the client would have conducted the cause, because in this case the damage inflicted is not established.

b. He is bound to employ at least ordinary industry, both that he win in the cause and that he finish it quickly; and if from gravely culpable negligence damage arises to the client, he is bound to repair it.

c. It is not lawful in the same cause to help the opposing party, for example to communicate depositions of witnesses or other acts to him, or to manifest the secrets of the client to him.

738. On fees to be demanded. a. For a cause which he has conducted, he can receive a just stipend, but it is not lawful for him to demand anything beyond a just stipend. Wherefore if the stipend has been assessed by competent authority, one must stand by it; but if none has been assessed, it must be determined by the judgment of prudent men.

b. The law by which the stipend is assessed can be penal, or preceptive from legal justice, or preceptive from commutative justice. Only in this last case is he who violated the law by taking a fee greater than just bound to restitution.

c. He is bound to conduct the causes of the poor gratis according to the precept of charity; and therefore a. he is bound to help those who are in extreme necessity under grave obligation and with his own grave inconvenience; b. those who are in grave necessity, under grave obligation indeed, but not with grave inconvenience; c. finally those who are in common necessity, under light obligation, if he can conveniently do so. Therefore it suffices if he furnishes them some help or counsel when he is free from other labors.

d. He is not bound to provide help spontaneously, but only to those who implore his help; by repelling those asking he sins against charity if he foresees that because of this they will suffer grave damage.