Section IV. On Advocates

(St. Thomas, II-II, q. 71; St. Alphonsus, Theologia Moralis, book IV, nn. 218-226; Homo Apostolicus, tract 13, nn. 69-72.)

Under the name of advocates come: 1° those who in a civil or commercial matter argue the client's cause before a judge, and in a criminal matter defend the accused; 2° those who before a tribunal act in place of the litigating parties, by petitioning, concluding, etc., for them; the latter are more often called procurators. Therefore:

I. An advocate ought, by justice, to have or to acquire for himself knowledge congruent with the cause which he undertakes.

II. He can undertake causes as follows:

1. With respect to criminal causes, he can defend the accused even if he is certain concerning the crime committed, for "the accused is not bound to the penalty unless convicted; therefore he can by himself or by another avert it until he is convicted" (St. Alphonsus IV, 220). Nevertheless it is lawful to use only just means; therefore he cannot defend depraved theories, for example determinism, by which all freedom and guilt would be taken away. He can, however, in individual cases gather together whatever could lessen responsibility or even show irresponsibility.

2. As regards civil causes:

a) He can also undertake a doubtful cause, even though perhaps less probable, provided there is a prudent hope of winning, and the client is warned about the doubt (St. Alphonsus IV, 222). "The reason: both because an opinion less probable can in the course of time become more probable, and because many times an opinion which appears less probable to the advocate seems more probable to the judge himself" (St. Alphonsus IV, 222).

b) He cannot undertake a manifestly unjust cause. If, in the course of the lawsuit, he comes to know that the cause is certainly unjust, he is bound to abandon it. If he does not warn the client about the injustice of the cause, he sins against justice toward him; if he has warned him and goes on, he sins by furnishing him counsel and recourse (St. Thomas, II-II, q. 71, a. 3; St. Alphonsus IV, 220).

III. An advocate is bound by justice to treat diligently the cause undertaken; not to abandon it against the will of the client, except in the case just assigned under b); nor to draw it out longer, so that he may receive a greater fee. Finally, he should not demand a richer honorarium than law or custom, with account taken of the labor, permits. If he excels in skill, he can ask what the most skilled would ask in circumstances of this kind; for the service furnished can be said to be worth so much, and the client is to be said to have consented to such a price. If the client departs from the lawsuit for a just cause, the advocate does not have a right except to the price of the labor performed. If without sufficient reason he abandons it, the advocate can demand the whole fee about which they agreed; but commonly the price is not customarily established from the beginning for the whole lawsuit (St. Alphonsus IV, 225; Homo Apostolicus, tract 13, n. 70).

To what extent he is sometimes bound to defend a cause gratuitously was said in the treatise on charity (n. 535; cf. St. Thomas, II-II, q. 71, a. 1 and 4, ad 1).

IV. An advocate who has failed in his office is bound to restore the damages that followed, if he was gravely culpable and insofar as he foresaw them at least confusedly.

Here note well that an advocate sometimes sins against justice with respect to the adversary of his client, for example: 1° if he undertakes a manifestly unjust cause; in which case, if he wins, he is bound to restore all damages to the defeated party (St. Thomas, II-II, q. 71, a. 3; St. Alphonsus IV, 223); if he is defeated, he ought at least to restore the expenses which the victor cannot recover from the party; 2° if he produces false writing or false witnesses, or adulterates harmful instruments. One who would bring forward truthful instruments, yet drawn up either to supply ones that had been lost or to pursue a certain right, would not act against commutative justice, although he would sin;¹ 3° if, convinced of the injustice of the cause undertaken by him, he drives the adversary to a settlement (St. Alphonsus IV, 226).

¹ Sweens, n. 610.