AVVOCATO

Machine translation of the 1948–1954 Italian original. The original text is authoritative.

ADVOCATE. —

I. Canon Law

The assistance provided in judicial proceedings in Rome by patrons on behalf of their clients was initially an aristocratic and gratuitous office (oratores), which often opened the way to high state offices (cf. Cicero, *De divinatione*, 4, 11). Later, parties, especially in criminal cases, began to call upon patrons to defend them (advocati), and thus the patronage of oratores and advocati merged into a single office, which, though initially gratuitous, became remunerated; nor did the *lex Cincia de muneribus* (550 A.U.C.) succeed in restoring the ancient gratuity of the forensic profession. According to this criterion, patronage was regarded as a public office and gradually gained greater consideration within the legal order with the establishment of Orders (consortia advocatorum or corpora togatorum), particularly regulated by Justinian.

The office of the advocate, already defined by Ulpian as «desiderium suum vel amici sui apud eum qui iurisdictioni praeest exponere vel alterius desiderio contradicere» (*D.* 3, 1, 1), consists in providing assistance to the plaintiff or the defendant.

In the Church, ecclesiastical defensores (defenders) are found from ancient times (the *Novellae* 56–59 already mention *defensores clericorum*). It is known that Innocent I (402–17) established in Rome seven city defensores with the duty of pleading before the Consistorium. From these likely originated the seven concistorial advocates, who were given a particular regulation by Benedict XII (*Constitutio Decens et necessarium*, 1340). Alongside the concistorial advocates, there were from very early times the procurators of the Sacred Apostolic Palaces, who pleaded before the Auditorium Sacri Palatii. However, when cases were no longer heard in the Consistorium and the Auditorium was succeeded by the Sacred Roman Rota, the concistorial advocates retained the exclusive right to request the pallium for archbishops in consistory and to plead in causes of beatification and canonization, while the procurators of the Sacred Palaces retained the right to exercise their office in the same causes. Nevertheless, the concistorial advocates were recognized as proper and native to the Sacred Roman Rota, and the procurators of the Sacred Palaces were also granted the right to plead before the same tribunal (cf. *Normae S. R. Rotae*, art. 54). Today, others have been added to the Rota as simple "rotal advocates."

De Luca writes that the advocates of the Roman Curia are professors of both civil and canon law. They defend causes, both in writing and orally, solely from the standpoint of the law, indicating to the judges what has been most accurately established in law and whether it applies correctly to the case and in what manner.

Over the years, collegia of advocates were established in the Roman Curia, the most distinguished of which was that of the concistorial advocates, followed in importance by the college of procurators of the Sacred Apostolic Palaces, and finally by that of the rotal advocates. In addition to these advocates belonging to these distinguished forensic colleges, there were many others who practiced before the civil and criminal tribunals of the city. Some held permanent positions with Roman authorities, while others lived off the profits of their profession, often receiving annual pensions and gifts from their clients.

The Roman Pontiffs, with great assiduity, safeguarded the dignity of the forensic profession, regulated the activities of advocates and their fees, and at the same time sought to remove abuses and excessive delays detrimental to clients.

In solemn ceremonies, concistorial advocates wear a cassock with a black velvet rochet with wide sleeves and frogs; in the papal pontifical, they wear the *piva lega* fastened on the right shoulder over the cassock. As for advocates in general, Clement XI, renewing the prescriptions of Urban VIII, forbade advocates the use of the so-called abbatial habit, proper to ecclesiastics, as well as the collar. This prohibition was later renewed by Leo XII.
Monsignor Luigi Gazzoli (1803), as Auditor General of the Apostolic Camera (ordinary judge of Rome), prescribed that advocates should dress decently in a long black garment, i.e., cassock and ferraiolone, as had been the immemorial custom in public hearings, and imposed penalties on offenders.

When speaking of advocates, it is not out of place to mention the advocate for the poor, who was a concistorial advocate expressly appointed for the causes of poor persons, prisoners, or those otherwise brought before justice.

Not all advocates have been worthy of their profession, which often declined through their actions. For example, St. Bernard made a severe censure of the legal profession of his time in *De Consideratione*, addressed to Pope Eugenius III (1145–53), who had been his disciple. On the other hand, it would be lengthy to make full mention of the most celebrated advocates of the Roman Curia, especially those who were elevated to the cardinalate (it suffices to recall the most famous, Giambattista De Luca, *v.*), or even to the papacy, such as Benedict XIV.

According to the *Codex Iuris Canonici*, it is within the power of litigating parties to appoint one or more advocates (*can.* 1656, § 3), and the same advocate may also be appointed as procurator (*can.* 1656, § 4); however, the assistance of an advocate is always necessary for the defendant in criminal trials and for all parties in trials of public interest or when the judge so requires (*can.* 1655).

The advocate is appointed by the party or by the judge by written act (*can.* 1661); his mandate may cease by revocation (*can.* 1757, § 3, n. 1).

The agreements that have been forbidden to advocates since Roman law are: *litis redemptio*, the *pactum de palmaria*, and the *pactum de quota litis* (*can.* 1665; cf. similarly in Italian law: *Codice civile*, arts. 1261 and 2233).

The conditions for being an advocate under canon law are as follows: to be Catholic (only by exception may non-Catholics be admitted, *can.* 1657, § 1; women, although there is no specific prohibition, are excluded by the general principles of canon law), of legal age, of unblemished reputation (*can.* 1657, § 1), and a graduate in canon law or at least well-versed in it (*can.* 1657, § 2). To practice advocacy before the pontifical tribunals, it is necessary to possess at least a degree in canon law, to have completed a three-year apprenticeship at the Sacred Roman Rota (*Normae S. R. Rotae*, art. 54, § 2; which apprenticeship is now required for all advocates in marriage nullity cases), and to have passed a special examination before the Sacred Roman Rota. Advocates thus approved (rotal advocates) may practice before all ecclesiastical tribunals.

Bibl.: G. B. Piazza, *Eucologio Romano*, Rome 1698; G. B. De Luca, *Relatio Romanae Curiae*, Disc. 46; G. Moroni, *Curia romana*, in *Dizionario*, XIX, Venice 1843, pp. 28 ff.; Giacomo Violardo, Guglielmo Felici.

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II. PROFESSIONAL MORALITY

The advocate, to exercise his profession worthily, must possess the following qualities: competence, wisdom, diligence, justice, and humanity.

The advocate is bound to have sufficient knowledge of the legal system in general and of those particular legislative norms directly relevant to the cases for which his action is sought.

It is not enough to have an abstract knowledge of legal norms; it is also necessary to know how to apply them wisely to concrete cases. Such an ability is ordinarily acquired only through apprenticeship. An advocate who lacks the competence and experience required by the demands of his profession and the nature of the cases entrusted to him is bound either to suspend the exercise of his profession or to seek assistance.

(Int. Felici)

Article illustration — Ecclesiastical advocate.

He may be assisted by others. He may resume his profession only after he has acquired the necessary competence and experience; if he proceeds otherwise, he is liable for any damages that may result to those who resort to his services.

Generally, there is no right to demand that an advocate take on the defense of a particular case; however, if he does assume it, he must pursue the case with diligence proportionate both to the importance of the case and to the contractual obligations: otherwise, he is held liable for damages arising from his culpable negligence.

The advocate must be just both in relation to the moral legal order and toward his clients. In relation to the moral legal order, it can generally be affirmed that the advocate is permitted to do everything that is permitted to the defendant or plaintiff. Therefore, in criminal cases, he may undertake the defense of the accused even if he knows with certainty that the latter committed the crime attributed to him. One who has committed a crime is not obliged to reveal it spontaneously; on the other hand, he cannot be condemned unless the law proves him to be truly guilty. Thus, the advocate may always act in defense to highlight the insufficiency of the evidence brought against the accused. In civil proceedings, the advocate may not undertake the defense of a cause that is certainly unjust; if he does so, he incurs responsibility for effectively cooperating in inflicting an unjust harm upon the opposing party. He may, however, support a cause that is probably just. In such a case, he is obliged to make the client aware of the objective situation and must also desist if