Chapter II. On the Obligations of Advocates

I say 1st. Advocates are bound not only by legal justice toward society, but also by commutative justice toward litigants, to have competent knowledge, to undertake and pursue the case with due diligence and study, to guard against damaging delays, to examine the client's case seriously, to preserve fidelity to him, to reveal the justice or injustice, and scrupulously to indicate the degree of probability of gaining or losing it, and finally in pleading the case to guard against frauds, false proofs, and other unjust means against the adverse party.

I say 2nd. In civil matter, advocates of the accused cannot licitly sustain a certainly unjust case; wherefore if by defending it they obtain an unjust sentence, they are bound to repair all damages following from it, if these are not repaired by those in whose favor the unjust sentence falls. But a fortiori in criminal matter advocates cannot undertake the parts of an evidently unjust accuser. - Cf. St. Alphonsus, n. 223.

Question 1. Can advocates defend cases even less probable, both of defendants and of plaintiffs?

Resp. Affirmatively, in civil cases, according to the common opinion, because they can have hope that the truth will shine forth. But in criminal cases, the accused can always be defended, even if his culpability were openly established to all, provided this is done by honorable and licit means, with lies, frauds, etc., excluded. The reason is that an advocate defending the accused inflicts injury on no one; indeed also by his office he protects the right which the accused has, that he not be condemned before he has been convicted in judgment. - Cf. St. Alphonsus, nn. 220 and 222. - Sanchez, Decal., lib. 1, cap. 9, n. 51.

Question 2. To what is an advocate bound by reason of honorarium or stipend?

Resp. Nothing, generally speaking, can be accepted beyond what is just, which either perhaps has been taxed by law or is to be determined by the judgment of prudent men, with consideration had of the business, the skill of the advocate, the labor which he spends, and the received custom. But with regard to the poor in particular, 1st. he is bound to succor gratuitously, even with his own grave inconvenience, those who are in extreme necessity; 2nd. likewise those who are in grave necessity, he is bound to patronize gratuitously, and indeed under mortal sin, yet not with his own notable inconvenience; 3rd. finally, even in common necessity he is bound from charity to protect the cases of the poor, yet not with grave inconvenience; namely it suffices that he bestow upon them some of his work when he is free from others. - Cf. St. Alphonsus, Hom. Ap., n. 69.

Question 3. What can an advocate exact if, after agreement has been made about the stipend, the client abandons the case begun?

Resp. He can exact the whole if it does not stand through him that he does not pursue the suit, no differently than one hiring out his work for some wage can exact this wage, if it stands through the hirer that the work is not completed. Except, however, if a just cause intervenes for abandoning the suit, since this condition is always understood implicitly in the agreement. - Cf. St. Alphonsus, ibid.

Question 4. To what is an advocate bound who, when the case has already begun, notices that it is unjust?

Resp. He ought at once to warn the client concerning the injustice of the case and abandon it, lest he cooperate in unjust harm; nor can he persuade composition, since this ought to have place only in a doubtful thing. But if he knowingly pursued the unjust case, he will be bound to compensate all damages coming to each party. For he must restore to the adverse party from a 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 a sin of omission, since by office he was bound to warn him concerning the injustice of the case. Nevertheless, by abandoning the case which he discovers to be unjust, the advocate ought not to help the other party, or to reveal the secrets of his own case to the other party, as is clear from natural law, and as St. Thomas expressly teaches, 2-2, q. 71, art. 3.

Question 5. Whether and how an advocate sins who defends a just case by unjust means, for example, if he substitutes a new promissory note in place of a prior lost one, etc.?

Resp. He sins against fidelity and truthfulness, more gravely indeed or less gravely according to the measure of the unjust means employed and the gravity of the thing of which there is question. Nor can he be excused from the good end which he intends; for evils are not to be done that goods may come. But of itself he does not sin against justice, since the case is supposed just, although by accident he can injure justice and be obligated to restitution, namely if damage comes from it to his own party or to the adverse party: for if, for example, the fraud is detected, it can easily happen that a case in some way good is led into suspicion and collapses. - And the same solution, as it seems, must be given if the advocate not only substitutes a new promissory note for the prior one, but supposes one which never existed; for although he then sins more gravely, nevertheless properly and of itself he does not violate commutative justice.

Question 6. Is it licit for an advocate to seek and vindicate dissolution of marriage according to the laws of each State?

Resp. Since, as St. Alphonsus says, "an advocate does not stand on the part of the judge but of the client," almost only that seems able to be conceded to him in this matter which is conceded to the client. Now in the cases enumerated at n. 559, Q. 4, recourse is permitted to the client; it is also permitted to the accused to defend his rights when the plaintiff wishes to obtain civil divorce. The client, the plaintiff, certainly cannot seek dissolution when his marriage is valid, so that he may enter new nuptials or obtain some temporal gain; but he seems able to have recourse for obtaining only civil effects, with the bond remaining, where civil law does not admit separation of bodies, or where this would not suffice and such circumstances are present which cry out that the thing is morally necessary: for example, the danger of the intrusion of adulterine offspring, or of the death of the wife, or of another most grave cause; but not even such recourse can be permitted without episcopal permission.

In all these cases where it is licit for the spouses to have recourse, the same is licit for advocates; where it is not licit for those, neither is it licit for these voluntarily to undertake a case for obtaining divorce. Indeed in the case of a spouse retained by a true bond but as if compelled to seek absolute civil divorce, the case ought, as it seems to me, to be proposed by the advocate in such a way that it is manifest to all that the client in no way wishes anything other than civil protection of himself and his family. - Wernz, v. 4, n. 750. - Collat. Brugen., v. 15, p. 649 et seq. - Haine, t. 4, q. 83. - Feije, n. 583. - Kenrick, tr. 8, n. 114. - St. Alphonsus, n. 223.