The advocate and unjust causes

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.

AN advocate is one who undertakes to assist litigants by his advice and help and by pleading their case before the judge. For the purposes of moral theology we may neglect the technical differences between barristers and solicitors in English law.

As the advocate acts in the name of his client he may in general do what his client is allowed to do, and he must not do what it would be wrong for his client to do. He may not undertake a cause which is manifestly unjust; otherwise he will be guilty of sin, and bound to make restitution for all the damage that he causes. If in the course of the trial it becomes manifest that his client’s cause is a bad one, he must inform his client of the fact and refuse to proceed with the case. However, it is not necessary that the advocate should be certain that his client is right; it will be sufficient if his cause is probably just, for it may be expected that the doubtful rights of the parties will become clear in the course of the trial. In a criminal action the advocate may always defend the accused by lawful means whether he be guilty or not. If he is guilty, the defence of his advocate cannot do any serious harm, and will at least help toward the merciful administration of justice. The prosecution of an accused person may not be undertaken unless his guilt is practically certain, for otherwise there will be danger of injuring the character of an innocent person and of exposing him to vexation without just cause.

From the decree of the Holy Office, December 19, 1860, in answer to the Bishop of Southwark, it is clear that in England an advocate may undertake a case where there is question of judicial separation between husband and wife. Even in an action for divorce in a civil court he may defend the action against the plaintiff. If the marriage has already been pronounced null and void by competent ecclesiastical authority, a Catholic advocate may impugn its validity in the civil courts. Moreover, for just reason, as, for example, to obtain a variation in the marriage settlement, or to prevent the necessity of having to maintain a bastard child, a Catholic lawyer may petition for a divorce in the civil court, not with the intention of enabling his client to marry again while his spouse is still living, but with a view to obtaining the civil effects of divorce in the civil tribunal. This opinion at any rate is defended as probable by many good theologians. The reason is because marriage is neither contracted nor dissolved before the civil authority; in the formalities prescribed for marriage by civil law there is only question of the civil authority taking cognizance of who are married, and of the civil effects which flow therefrom.

Is it lawful for an advocate to defend an unjust case? - In civil matter an advocate cannot licitly sustain a certainly unjust case. Wherefore if the laws favor one doing injustice, on account of some defect, for example, of a document or instrument, the advocate cannot patronize him, unless perhaps so that he may free him from useless and damaging vexation, for instance if a debtor cannot pay, nevertheless with him warned that for this reason he is not released from the natural obligation, and unless for that reason he is no longer going to fulfill it.

Much more, in criminal matter he cannot undertake the parts of an evidently unjust accuser. The reason is that, as St. Thomas says, 2. 2. q. 71. a. 3, "it is unlawful for someone to cooperate in doing evil, whether by counseling or by helping, or by consenting in any way whatever; because one counseling and aiding is in some way doing. And the Apostle says, Rom. 1, 32, that they are worthy of death, not only those who do sin, but also those who consent to those doing it. Hence all such persons are bound to restitution. But it is manifest that an advocate furnishes help and counsel to him whose case he patronizes. Hence, if he knowingly defends an unjust case, without doubt he sins gravely and is bound to restitution of that damage which the other party incurs against justice through his help. But if he ignorantly defends an unjust case, thinking it to be just, he is excused according to the mode by which ignorance can be excused." L. 14 C. de Iudiciis; Kenrick 141.

You will resolve: An advocate who, after the case has already been undertaken, notices that it is unjust, must at once warn his client concerning the injustice of the case and abandon it. Otherwise he will be held for all damages coming to either party. If nevertheless the client is in bad faith, this client is bound first to restore, as commanding. But if he does not restore, then in the second place the advocate is bound to restore, namely as executor. "Nevertheless he ought not betray it, namely so that he helps the other party, or reveals the secrets of his own case to the other party." S. Th. l. c. ad 2. The first is against fidelity, the other against the strict obligation of secrecy. They except: unless for that reason the other party would have to suffer grave and unjust detriment. Cf. La-Croix l. 3, p. 2, n. 1231; Lugo d. 37, n. 183. But the advocate can induce his client to a settlement, yet, as St. Thomas says, l. c., without damage to the adversary. Wherefore he would sin gravely if he should induce him whose case he notices to be evidently unjust to a settlement. For in such a case no place is given to settlement. A general procurator sins against justice if from negligence, from precipitation or prejudice, from hatred or acceptance of persons, etc., he drags an innocent person into detention, into judgment, and into undergoing an unjust sentence. Likewise if he sustains an accusation after, in the course of the case, he has recognized innocence, or has gravely doubted concerning it; hence he is held concerning all damages subsequently coming to the accused.

Can advocates defend cases, even less probable ones, both of defendants and of plaintiffs? - R. Affirmatively in civil cases; because, as matters of this kind are litigious, there can reasonably be hope that the truth may shine forth. Besides, since the judge can divide the thing according to the proportion of greater or lesser probability, it is lawful for advocates to urge the probable reasons of clients, so that he may decree what is just according to the things alleged and proved. Cf. 18. Nevertheless the client must be warned of the doubtful outcome, lest perhaps he make the expenses of the lawsuit uselessly.

In criminal cases the defendant can always be defended, even if his culpability is established. The reason is that an advocate defending a defendant inflicts injury on no one, and from his office he protects the right of the defendant, lest he be condemned before the crime has juridically been fully proved, and at least so that the Prince may be moved to mercy. "In a doubtful criminal case it is not lawful to protect the parts of the plaintiff, who in such a case sins gravely against the defendant, therefore also the advocate; nor when the plaintiff acting against the possessor knows that he can prove nothing, but that the matter will always remain doubtful, because then the possessor is unjustly vexed, for whom the judge at last will have to judge." L. 220. Hence, if he patronizes the defendant, it suffices that the exception be just in the exterior forum; but if he patronizes the plaintiff, the case must be just also in the forum of conscience. Kenrick 145 judges otherwise, namely that he can defend the plaintiff if the matter is doubtful; but with no reason brought forward.

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.

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.

V. QUESTION II. Is it lawful for an advocate to defend a less probable cause? ANSWER. Some affirm it. In few words I shall settle the matter. An advocate sins: first, if he defend a cause known to be unjust; second, if he defend a less probable cause. If the civil cause be equally probable, he can treat it before the judge; but he ought sincerely to warn his client of the danger of losing the suit. For when the rights appear equal, then each party has a right of proposing its own reasons. This nevertheless is true when the client is the possessor. For if the adversary be the possessor, an advocate cannot defend his client against the possessor. Since when the rights are equal, and consequently the cause doubtful, the condition of the possessor is the better. That an advocate may lawfully defend his client against a possessor, he must judge his own cause to be certainly and evidently the more probable, and such as will appear to the judge. But while it appears doubtful, he cannot judge it the more probable, and indeed evidently. Advocates must beware lest greed and cupidity of gaining clothe an opinion which is to be defended with a degree of greater probability which it does not have.

I ASSERT first, that an Advocate who through notable negligence or ignorance of his loses his client's just cause sins mortally against justice and is bound to restitution of the value of the cause, and to the expenses and other damages; and this, if he presents himself as a learned man, and his client did not know his ignorance; otherwise not, unless he acts with fraud or grave fault, and by cavillation takes the cause from him. So commonly the Doctors: Nauarrus sum. Lav. cap. 25, num. 29; Hostiensis in cap. calumniam, de poenis; Innocent in cap. sicut dignum, de homicid.; Sylvester V. Advocatus, num 16; Toletus lib. 5 summae, cap. 62; Filliucius tom 2, tract. 40, in octavum praeceptum, cap. 10, num. 295; Lessius Lib. 2, cap. 51, dub. 8, num. 47; Fagundez lib. 8, cap. 38; and it appears from Leg. Idem iuris, §. 1, ff. ad Leg. Aquil.

The REASON is that by justice he is bound to show diligence for his client, and the greater, the more difficult the client's cause. Thus he is bound also to be skilled.

I ASSERT secondly, that an Advocate who defends a cause which he knows to be unjust sins mortally against justice and is bound to restore to the adverse party the damages that befall it, of expenses, etc. This is common among the Doctors. So D. Bonaventura in speculo animae, cap. 2 et 4; D. Thom. art. 3, ad 4. But Syluester, Filliucius, and Lessius note that an Advocate, after he has admonished his client of the injustice of the cause, is bound to abandon it if the client wishes to pursue it, yet not to betray to the adverse party what he knows in secret. In a just suit he is bound also not to prolong it, not to allege laws sophistically, from D. Bonaventura in speculo animae, cap. 2.

THEREFORE an Advocate who by superfluous delays, suborning of witnesses, offering of false instruments, or by false witnesses, or by other iniquitous and deceitful means alleging false laws, which he knows to be wholly false, causes the adversary of his client to lose a just cause, sins mortally against justice, and is bound to every damage emerging. So D. Bonaventura in speculo animae, cap. 2, ad finem, whom Nauarrus follows, summ. Lat. cap. 25, num. 29; Hostiensis in cap. calumniam de poenis; summa Confessorum, Lib. 2, tit. 5; Syluester V. Aduocatus, numero 4; Armilla, V. Aduocatus, num. 19; Filliucius tom. 2, tract. 40, in 8. praeceptum, cap. 10, num. 295; Tovecus Lib. 5, cap. 62; and others passim. It appears from cap. si quis autem, 3, quaest. 7, and from L. 3, Properandum, Cod. de Indice. The reason is that he does an injury to the adverse party, as S. Bonaventura argues, and with him Fagundez cap. 38, n. 18; but he who is the cause of injury to anyone with damage is bound to restore it, as appears ex cap. si sua culpa, de iniuriis, et damno dato.

HE CAN, however, if he has a just cause, deceive the adversary by prudently concealing what might impede the right of the adverse party, provided he abstains from lies and does not use other falsehoods. So D. Thom. quaest. 71, art. 3, ad 3; Caiet. there; Nauarrus, Syluester loco cit.; the Gloss in cap. ne quis, 22, quaest. 2, and in cap. Dominus noster, 23, quaest. 2; Fumus V. Aduocatus.

I ASSERT thirdly, that an Advocate can plead in a less probable cause too, in a capital cause, and one involving loss of all goods.

AND indeed, that an Advocate, abandoning the more probable, may follow the less probable, not only of law but also of fact, all teach, as Diana notes p. p. tract. 13, resol. 4; but they say he is bound to disclose to the party the lesser probability of his cause, otherwise he will restore to him the damages and expenses.

THE DIFFICULTY therefore stands: whether he may proceed even in a capital cause, and one involving loss of all goods, by defending the actor. For the negative side is maintained by Loui. de Cruz in direct. confess., part. 1, prac. 8, art. 5, dub. 1; Malderus prima secundae, quaest. 19, art. 5, disp. 86, assert. 8; Martinuz part. 21, tract. 1, quaest. 19, dub. 26, concl. cap. 3; and others with Soto lib. 5, quaest. 8, art. 3, because in doubt the condition of the possessor of the thing is better, and in doubt favor is to be shown the Defendant, as Bassaeus also says, V. Advocatus.

BUT the contrary opinion is held by Sanchez in summa, tract. 2, quaest. 74, art. 3; Lorca prima secundae, tract. 1, disp. 30, memb. 2; Villalobos tom. 1, tract. 1, diffic. 14; Diana loco cit.; Fagundez infra; Bass. loco cit.; Tannerus, disp. 4, quaest. 4, dub. 6, num. 117, citing Syluester V. Advocatus, quaest. 10, §. 3; Nauarrus man. cap. 25; Valentia quaest. 11, puncto 4; Azorius Tom. 1, lib. 1, cap. 17, quaest. 4; and Lessius lib. 2, cap. 31, dub. 9.

The REASON is that, if the Client could litigate in this case, therefore the Advocate also could defend.

For the ADVOCATE only upholds the side of one party, as far as reason goes, but does not declare the law or pronounce sentence.

Fagundez nevertheless ADDS, cap. 38, num. 15, that if little utility would accrue to the actor, he cannot be defended in such grave cases. So also Lessius lib. 2, cap. 31, dub. 9, num. 53; Filliucius tom. 2, tract. 40, cap. 10, num. 285. Therefore Tannerus, with others, adds: Unless Charity recall it.

THIS opinion seems to me, at least, to need limiting, because it is against Charity, at least, to intend another's death or ruin in this way.

WHETHER, however, in a doubtful cause the Advocate may protect.

The AFFIRMATIVE opinion is maintained by Malderus prima secundae, quaest. 19, art. 5, dub. 86, assert. 8; Lorca prima secundae, quaest. 39, memb. 2; Diana p. p. Tract. 13, resol. 6. The reason is that the Advocate does nothing but represent to the Judge the reasons of the party. The same maintains part. 4, Tract. 3, resol. 47, adducing Metellus Tom. 1, disp. 3, cap. 4, coroll. 6, num. 16, against Salas prima secundae, tract. 8, disp. unic., sess. 11, n. 108. Bassaeus subscribes loco cit.

Fagundez nevertheless ADDS num. 13 that he is bound to admonish the client, otherwise he cannot. So also Nauarros summ. Lat. cap. 25, numero 28; Syluester V. Aduocatus, numero 5. On these things see prima secundae, Tract. 1, disp. 17, quaest. 10.

I ASSERT fourthly, that an Advocate defending Defendants against the Fisc by frauds, and effecting by these that the Fisc not seize the client's goods, is not bound to restore that gain to the Fisc. So Lessius Lib. 2, cap. 31, dub. 8, num. 50; Filliucius num. 283; Sanchez Lib. 10, de matrim., disp. 8, num. 14; Fagundez Lib. 8, cap. 38, num. 10; and he derives it from Nauarrus, summ. Latinae cap. 18, num. 49.

The REASON is that a penalty is not owed except after the Judge's sentence has followed.

I ASSERT fifthly, that if the Advocate of the fisc, by negligence alone, at least grave, be the cause that the fisc does not uncover the truth for the despoiling of goods, he is not bound to restore this damage to the fisc, but only a proportionate part of the salary and of the expenses he incurred: so Filliucius loco cit.; Lessius num. 51; Fagundez num. 11.

I ASSERT sixthly; if an Advocate has so defended the Client that the accuser cannot prove the true matter and falls into the penalty of talion, he is not bound to restore damages to him, nor does he become irregular. So Lessius num. 52, against Nauarrus si furiosus, 2, part., §. 5; Salon 2, 2, q. 71, art. 3, controv. 1; Fagundez num. 22, against Nauarrus summa Lat. cap. 27, num. 209. The reason is that this evil is accidental, and he himself is not bound to uphold the Accuser's part.

BUT a great difficulty concerns the following question.