Section — Prümmer, Manuale Theologiae Moralis
§ 4. On The Obligations And Sins Of The Advocate
162. Notion. 1. An advocate is he who in judgment defends the part of one or the other litigant. In several regions there are usually distinguished advocates who from office protect the matter of the treasury or of the common good (commonly Staatsanwalt, procureur général), and private advocates, who defend the causes of private persons. - In canon law several persons are barred from the office of advocating.266
The obligations of the advocate are chiefly the following: a) to have sufficient knowledge of law and to apply due diligence in causes to be handled; b) to defend just causes by just means; c) not to exact an exorbitant salary for labor to be furnished or already furnished.267 But the salary must be measured according to just laws; but if the law does not determine it, attention must be paid to the conditions both of the advocate and of the client and of the labor furnished and of the contract freely stipulated.268
The sins of the advocate are chiefly:
a) Knowingly to defend unjust causes. For this is illicit cooperation in evil. Hence St. Thomas teaches: "If [the advocate] knowingly defends an unjust cause, without doubt he sins gravely and is held to restitution of that damage which, against justice, the other party incurs by his help. But if unknowingly he defends an unjust cause, thinking it to be just, he is excused according to the mode by which ignorance can be excused."269 "If the advocate at the beginning indeed believed the cause to be just, but afterward in the process it appears that it is unjust, he ought not betray it, namely, so that he may help the other party or reveal the secrets of his own cause to the other party. Yet he can and ought to desert the cause, or induce him whose cause he is conducting to yield, or to settle without damage to the adversary."270 In criminal causes an advocate can always defend the accused by lawful means. Indeed, according to the discipline in force, a defender is conceded to any accused person.
When there is question of a cause of divorce before a civil judge, a Catholic advocate can always defend the bond of a legitimate marriage; but he cannot cooperate in obtaining the divorce of a true marriage, unless nevertheless he knows that this divorce of this kind will produce nothing except merely civil effects. But if, on the contrary, he foresees that one or the other spouse after the divorce obtained is going to contract new nuptials, then the advocate cannot act as patron in these causes unless a very grave cause is present.271 In this sense the decree of the Holy Office of Dec. 19, 1860, seems to be understood: "Provided that the Catholic party can approach no other tribunal from which he may obtain a sentence of separation as to bed and table, and provided that the sentence of this tribunal has no other effect than the aforesaid separation, it can be tolerated that Catholics act in that forum in the parts of plaintiff and advocate, provided there are just causes of separation according to the judgment of the Bishop."
b) To treat negligently causes undertaken and thus cause damage to his client. This is evident of itself.
c) Not faithfully to manifest the dangers which can arise from a doubtful cause undertaken. Therefore the advocate sins and is held to restitution if he inspires too great confidence in the client, who thus, with notable damage, pursues a doubtful cause in court and finally loses.
d) To prolong too much a cause undertaken for extorting a greater salary.
e) To defend a just cause by unjust means.272 Therefore the advocate sins by producing false witnesses, bringing forward false documents, etc. Then indeed he does not sin against justice, and therefore is not held to restitution, if the cause defended is certainly just - which indeed in practice quite often can be known clearly only with difficulty - but he sins against truth and other virtues. But it is never lawful to use a false document in judgment, even if perhaps the identical true document has been lost without fault. Thus, e.g., it is not lawful secretly to supply a purely formalistic defect in some testament which, on account of this defect, would be considered invalid in court.273
266 S. theol. 2, 2, q. 71, a. 2; Code of Canon Law c. 1657 sq.
267 S. theol. 2, 2, q. 71, a. 4.
268 For ecclesiastical tribunals it is established: "The advocate is forbidden to purchase the suit, or to bargain for himself concerning an immoderate emolument or concerning a part of the thing in litigation once vindicated. If he has done these things, the agreement is null, and by the judge or by the Ordinary he can be punished with a monetary penalty; besides, he can both be suspended from office and also, if he is a recidivist, be removed and deprived of his title" (Code of Canon Law c. 1665).
269 S. theol. 2, 2, q. 71, a. 3.
270 Ibid. ad 2.
271 Cf. below in the treatise on marriage, III, n. 903.
272 S. theol. 2, 2, q. 71, a. 3 ad 3.
273 Cf. below, on testaments, n. 277.