Of Injustice in Judgment on the Part of Counsel

Of Injustice in Judgment on the Part of Counsel — St. Thomas Aquinas asks: Whether an advocate is bound to defend the suits of the poor?; Whether it is fitting that the law should debar certain persons from the office of advocate?; Whether an advocate sins by defending an unjust cause?; Whether it is lawful for an advocate to take a fee for pleading?.

We must now consider the injustice which takes place in judgment on the part of counsel, and under this head there are four points of inquiry:

Article 1: Whether an advocate is bound to defend the suits of the poor?

He that lacks food is no less in need than he that lacks an advocate. Yet he that is able to give food is not always bound to feed the needy. Therefore neither is an advocate always bound to defend the suits of the poor.

Since defense of the poor man's suit belongs to the works of mercy, the answer to this inquiry is the same as the one given above with regard to the other works of mercy (). Now no man is sufficient to bestow a work of mercy on all those who need it. Wherefore, as Augustine says (De Doctr. Christ. i, 28), "since one cannot do good to all, we ought to consider those chiefly who by reason of place, time, or any other circumstance, by a kind of chance are more closely united to us." He says "by reason of place," because one is not bound to search throughout the world for the needy that one may succor them; and it suffices to do works of mercy to those one meets with. Hence it is written (Ex. 23:4): "If thou meet thy enemy's ass going astray, bring it back to him." He says also "by reason of time," because one is not bound to provide for the future needs of others, and it suffices to succor present needs. Hence it is written (1 Jn. 3:17): "He that . . . shall see his brother in need, and shall put up his bowels from him, how doth the charity of God abide in him?" Lastly he says, "or any other circumstance," because one ought to show kindness to those especially who are by any tie whatever united to us, according to 1 Tim. 5:8, "If any man have not care of his own, and especially of those of his house, he hath denied the faith and is worse than an infidel."

It may happen however that these circumstances concur, and then we have to consider whether this particular man stands in such a need that it is not easy to see how he can be succored otherwise, and then one is bound to bestow the work of mercy on him. If, however, it is easy to see how he can be otherwise succored, either by himself, or by some other person still more closely united to him, or in a better position to help him, one is not bound so strictly to help the one in need that it would be a sin not to do so: although it would be praiseworthy to do so where one is not bound to. Therefore an advocate is not always bound to defend the suits of the poor, but only when the aforesaid circumstances concur, else he would have to put aside all other business, and occupy himself entirely in defending the suits of poor people. The same applies to a physician with regard to attendance on the sick.

Article 2: Whether it is fitting that the law should debar certain persons from the office of advocate?

According to Decretals III, qu. vii, can. Infames, many persons are debarred from the office of advocate.

In two ways a person is debarred from performing a certain act: first because it is impossible to him, secondly because it is unbecoming to him: but, whereas the man to whom a certain act is impossible, is absolutely debarred from performing it, he to whom an act is unbecoming is not debarred altogether, since necessity may do away with its unbecomingness. Accordingly some are debarred from the office of advocate because it is impossible to them through lack of sense---either interior, as in the case of madmen and minors---or exterior, as in the case of the deaf and dumb. For an advocate needs to have both interior skill so that he may be able to prove the justice of the cause he defends, and also speech and hearing, that he may speak and hear what is said to him. Consequently those who are defective in these points, are altogether debarred from being advocates either in their own or in another's cause. The becomingness of exercising this office is removed in two ways. First, through a man being engaged in higher things. Wherefore it is unfitting that monks or priests should be advocates in any cause whatever, or that clerics should plead in a secular court, because such persons are engaged in Divine things. Secondly, on account of some personal defect, either of body (for instance a blind man whose attendance in a court of justice would be unbecoming) or of soul, for it ill becomes one who has disdained to be just himself, to plead for the justice of another. Wherefore it is unbecoming that persons of ill repute, unbelievers, and those who have been convicted of grievous crimes should be advocates. Nevertheless this unbecomingness is outweighed by necessity: and for this reason such persons can plead either their own cause or that of persons closely connected with them. Moreover, clerics can be advocates in the cause of their own church, and monks in the cause of their own monastery, if the abbot direct them to do so.

Article 3: Whether an advocate sins by defending an unjust cause?

It is said (2 Paralip. 19:2): "Thou helpest the ungodly . . . and therefore thou didst deserve . . . the wrath of the Lord." Now an advocate by defending an unjust cause, helps the ungodly. Therefore he sins and deserves the wrath of the Lord.

It is unlawful to cooperate in an evil deed, by counseling, helping, or in any way consenting, because to counsel or assist an action is, in a way, to do it, and the Apostle says (Rom. 1:32) that "they . . . are worthy of death, not only they that do" a sin, "but they also that consent to them that do" it. Hence it was stated above (), that all such are bound to restitution. Now it is evident that an advocate provides both assistance and counsel to the party for whom he pleads. Wherefore, if knowingly he defends an unjust cause, without doubt he sins grievously, and is bound to restitution of the loss unjustly incurred by the other party by reason of the assistance he has provided. If, however, he defends an unjust cause unknowingly, thinking it just, he is to be excused according to the measure in which ignorance is excusable.

Article 4: Whether it is lawful for an advocate to take a fee for pleading?

Augustine says (Ep. cliii ad Macedon.) that "an advocate may lawfully sell his pleading, and a lawyer his advice."

A man may justly receive payment for granting what he is not bound to grant. Now it is evident that an advocate is not always bound to consent to plead, or to give advice in other people's causes. Wherefore, if he sell his pleading or advice, he does not act against justice. The same applies to the physician who attends on a sick person to heal him, and to all like persons; provided, however, they take a moderate fee, with due consideration for persons, for the matter in hand, for the labor entailed, and for the custom of the country. If, however, they wickedly extort an immoderate fee, they sin against justice. Hence Augustine says (Ep. cliii ad Macedon.) that "it is customary to demand from them restitution of what they have extorted by a wicked excess, but not what has been given to them in accordance with a commendable custom."