QUESTION 71: OF INJUSTICE IN JUDGMENT ON THE PART OF COUNSEL
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:
(1) Whether an advocate is bound to defend the suits of the poor?
(2) Whether certain persons should be prohibited from exercising the
office of advocate?
(3) Whether an advocate sins by defending an unjust cause?
(4) Whether he sins if he accept a fee for defending a suit?
Article 1: Whether an advocate is bound to defend the suits of the poor?
Objection 1: It would seem that an advocate is bound to defend the suits of
the poor. For it is written (Ex. 23:5): "If thou see the ass of him that
hateth thee lie underneath his burden, thou shalt not pass by, but shall
lift him up with him." Now no less a danger threatens the poor man whose
suit is being unjustly prejudiced, than if his ass were to lie underneath
its burden. Therefore an advocate is bound to defend the suits of the
Objection 2: Further, Gregory says in a homily (ix in Evang.): "Let him that
hath understanding beware lest he withhold his knowledge; let him that
hath abundance of wealth watch lest he slacken his merciful bounty; let
him who is a servant to art share his skill with his neighbor; let him
who has an opportunity of speaking with the wealthy plead the cause of
the poor: for the slightest gift you have received will be reputed a
talent." Now every man is bound, not to hide but faithfully to dispense
the talent committed to him; as evidenced by the punishment inflicted on
the servant who hid his talent (Mt. 25:30). Therefore an advocate is
bound to plead for the poor.
Objection 3: Further, the precept about performing works of mercy, being
affirmative, is binding according to time and place, and this is chiefly
in cases of need. Now it seems to be a case of need when the suit of a
poor man is being prejudiced. Therefore it seems that in such a case an
advocate is bound to defend the poor man's suit.
On the contrary, 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.
I answer that, 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 (Question , Articles ,9). 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.
Reply to Objection 1: So long as the ass lies under the burden, there is no means
of help in this case, unless those who are passing along come to the
man's aid, and therefore they are bound to help. But they would not be so
bound if help were possible from another quarter.
Reply to Objection 2: A man is bound to make good use of the talent bestowed on
him, according to the opportunities afforded by time, place, and other
circumstances, as stated above.
Reply to Objection 3: Not every need is such that it is one's duty to remedy it,
but only such as we have stated above.
Article 2: Whether it is fitting that the law should debar certain persons from the office of advocate?
Objection 1: It would seem unfitting for the law to debar certain persons from
the office of advocate. For no man should be debarred from doing works of
mercy. Now it belongs to the works of mercy to defend a man's suit, as
stated above (Article ). Therefore no man should be debarred from this office.
Objection 2: Further, contrary causes have not, seemingly, the same effect.
Now to be busy with Divine things and to be busy about sin are contrary
to one another. Therefore it is unfitting that some should be debarred
from the office of advocate, on account of religion, as monks and
clerics, while others are debarred on account of sin, as persons of
ill-repute and heretics.
Objection 3: Further, a man should love his neighbor as himself. Now it is a
duty of love for an advocate to plead a person's cause. Therefore it is
unfitting that certain persons should be debarred from pleading the cause
of others, while they are allowed to advocate their own cause.
On the contrary, According to Decretals III, qu. vii, can. Infames, many
persons are debarred from the office of advocate.
I answer that, 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.
Reply to Objection 1: Certain persons are sometimes debarred by unbecomingness,
and others by inability from performing works of mercy: for not all the
works of mercy are becoming to all persons: thus it ill becomes a fool to
give counsel, or the ignorant to teach.
Reply to Objection 2: Just as virtue is destroyed by "too much" and "too little,"
so does a person become incompetent by "more" and "less." For this reason
some, like religious and clerics, are debarred from pleading in causes,
because they are above such an office; and others because they are less
than competent to exercise it, such as persons of ill-repute and
Reply to Objection 3: The necessity of pleading the causes of others is not so
pressing as the necessity of pleading one's own cause, because others are
able to help themselves otherwise: hence the comparison fails.
Article 3: Whether an advocate sins by defending an unjust cause?
Objection 1: It would seem that an advocate does not sin by defending an
unjust cause. For just as a physician proves his skill by healing a
desperate disease, so does an advocate prove his skill, if he can defend
an unjust cause. Now a physician is praised if he heals a desperate
malady. Therefore an advocate also commits no sin, but ought to be
praised, if he defends an unjust cause.
Objection 2: Further, it is always lawful to desist from committing a sin. Yet
an advocate is punished if he throws up his brief (Decret. II, qu. iii,
can. Si quem poenit.). Therefore an advocate does not sin by defending an
unjust cause, when once he has undertaken its defense.
Objection 3: Further, it would seem to be a greater sin for an advocate to use
unjust means in defense of a just cause (e.g. by producing false
witnesses, or alleging false laws), than to defend an unjust cause, since
the former is a sin against the form, the latter against the matter of
justice. Yet it is seemingly lawful for an advocate to make use of such
underhand means, even as it is lawful for a soldier to lay ambushes in a
battle. Therefore it would seem that an advocate does not sin by
defending an unjust cause.
On the contrary, 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.
I answer that, 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 (Rm. 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
(Question , Article ), 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
Reply to Objection 1: The physician injures no man by undertaking to heal a
desperate malady, whereas the advocate who accepts service in an unjust
cause, unjustly injures the party against whom he pleads unjustly. Hence
the comparison fails. For though he may seem to deserve praise for
showing skill in his art, nevertheless he sins by reason of injustice in
his will, since he abuses his art for an evil end.
Reply to Objection 2: If an advocate believes from the outset that the cause is
just, and discovers afterwards while the case is proceeding that it is
unjust, he ought not to throw up his brief in such a way as to help the
other side, or so as to reveal the secrets of his client to the other
party. But he can and must give up the case, or induce his client to give
way, or make some compromise without prejudice to the opposing party.
Reply to Objection 3: As stated above (Question , Article ), it is lawful for a soldier,
or a general to lay ambushes in a just war, by prudently concealing what
he has a mind to do, but not by means of fraudulent falsehoods, since we
should keep faith even with a foe, as Tully says (De offic. iii, 29).
Hence it is lawful for an advocate, in defending his case, prudently to
conceal whatever might hinder its happy issue, but it is unlawful for him
to employ any kind of falsehood.
Article 4: Whether it is lawful for an advocate to take a fee for pleading?
Objection 1: It would seem unlawful for an advocate to take a fee for
pleading. Works of mercy should not be done with a view to human
remuneration, according to Lk. 14:12, "When thou makest a dinner or a
supper, call not thy friends . . . nor thy neighbors who are rich: lest
perhaps they also invite thee again, and a recompense be made to thee."
Now it is a work of mercy to plead another's cause, as stated above (Article ). Therefore it is not lawful for an advocate to take payment in money
Objection 2: Further, spiritual things are not to be bartered with temporal
things. But pleading a person's cause seems to be a spiritual good since
it consists in using one's knowledge of law. Therefore it is not lawful
for an advocate to take a fee for pleading.
Objection 3: Further, just as the person of the advocate concurs towards the
pronouncement of the verdict, so do the persons of the judge and of the
witness. Now, according to Augustine (Ep. cliii ad Macedon.), "the judge
should not sell a just sentence, nor the witness true evidence."
Therefore neither can an advocate sell a just pleading.
On the contrary, Augustine says (Ep. cliii ad Macedon.) that "an
advocate may lawfully sell his pleading, and a lawyer his advice."
I answer that, 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."
Reply to Objection 1: Man is not bound to do gratuitously whatever he can do from
motives of mercy: else no man could lawfully sell anything, since
anything may be given from motives of mercy. But when a man does give a
thing out of mercy, he should seek, not a human, but a Divine reward. In
like manner an advocate, when he mercifully pleads the cause of a poor
man, should have in view not a human but a Divine meed; and yet he is not
always bound to give his services gratuitously.
Reply to Objection 2: Though knowledge of law is something spiritual, the use of
that knowledge is accomplished by the work of the body: hence it is
lawful to take money in payment of that use, else no craftsman would be
allowed to make profit by his art.
Reply to Objection 3: The judge and witnesses are common to either party, since
the judge is bound to pronounce a just verdict, and the witness to give
true evidence. Now justice and truth do not incline to one side rather
than to the other: and consequently judges receive out of the public
funds a fixed pay for their labor; and witnesses receive their expenses
(not as payment for giving evidence, but as a fee for their labor)
either from both parties or from the party by whom they are adduced,
because no man "serveth as a soldier at any time at his own charge
[*Vulg.: 'Who serveth as a soldier,']" (1 Cor. 9:7). On the other hand an
advocate defends one party only, and so he may lawfully accept fee from
the party he assists.