ADVOCATE. - I. CANON LAW. - Assistance in trials undertaken in Rome by patrons on behalf of their clients was initially an aristocratic and unpaid office (oratores), which often opened the way to high offices of state (cf. Cicero, De divinatione, 4, 11). Later the parties, especially in criminal cases, used to summon patrons to be defended (advocati), and thus the patronage of the oratores and of the advocati merged into a single office which, at first unpaid, became remunerated; nor did the lex Cincia de muneribus (year 550 of Rome) succeed in restoring the ancient gratuitousness of the forensic ministry. According to this principle, patronage was considered a public office and gained ever greater consideration in the legal order with the establishment of the Orders (consortia advocatorum or corpora togatorum), particularly regulated by Justinian.
The office of the advocate, which even as early as Ulpian was defined as « desiderium suum vel amici sui apud eum qui iurisdictioni praest exponere vel alterius desiderio contradicere » (D. 3, 1, 1), consists in providing assistance to the plaintiff or the defendant.
In the Church, from ancient times, the defensores ecclesiarum are found (already Novels 56-59 speak of the defensores clericorum). It is known that Innocent I (402-17) established in Rome seven defensores of the city with the office of pleading before the Consistorium. From these there probably originated the seven consistorial advocates, to whom a particular regulation was given by Benedict XII (Constitution Decens et necessarium, a. 1340). Alongside the consistorial advocates we find from very ancient times the procurators of the Sacred Apostolic Palaces, who pleaded before the Auditorium Sacri Palazzi. But when cases were no longer treated in the Consistorium, and the S. Romana Rota succeeded the Auditorium, the consistorial advocates retained as exclusive the right to request the pallium in consistory for archbishops and to postulate in causes of beatification and canonization, and the procurators of the Sacred Palaces retained the right to exercise their office in the same causes; however, the consistorial advocates were received as proper and native members of the S. Romana Rota, and the procurators of the Sacred Palaces were likewise recognized the right to plead in the same tribunal (cf. Normae S. R. Rotae, art. 54). Today, to these are added others in the Rota, as simple "rotal advocates."
De Luca writes that the advocates of the Roman Curia are professors of both laws, civil and canon. They, both in writing and orally, defend cases solely from the point of view of law, indicating to the judges what has been established more precisely in law and whether it applies well to the case and in what manner.
With the passing of years, in the Roman Curia the aforementioned colleges of advocates came to be constituted, the most distinguished of which was that of the consistorial advocates, followed then in importance by the college of procurators of the Sacred Apostolic Palaces, and finally by that of the rotal advocates. Besides the advocates belonging to these distinguished forensic colleges, there were others, and in great number, who carried on their activity before the civil and criminal tribunals of the city. Some of these had permanent employments with the authorities of Rome; others, instead, lived on the profit of their profession, often receiving annual pensions and gifts from their clients.
The Roman Pontiffs with great assiduity protected the dignity of the forensic profession, determined the activity of advocates and their fees, and at the same time took care that abuses and culpable delays to the detriment of clients be removed.
In solemn ceremonies the consistorial advocates wear a talar cassock with over it a robe of black velvet with wide sleeves and frogging; in the pontifical of the Pope they wear over the cassock the cope fastened on the right shoulder; as for advocates in general, Clement XI, renewing the prescriptions of Urban VIII, prohibited advocates from the use of the garment called that of abbot, proper to ecclesiastics, and furthermore of the collar. This prohibition was later renewed also by Leo XII.
Msgr. Luigi Gazzoli (1803), as Auditor General of the Reverenda Camera Apostolica (ordinary judge of Rome), prescribed that advocates should dress decently in a long black garment, that is, with cassock and ferraiolone, as by immemorial custom had always been practiced in public audiences, and imposed penalties for violators.
Since we are treating of advocates, it is not out of place to mention the advocate of the poor, who was a consistorial advocate expressly deputed for the causes of poor persons, imprisoned or in any manner brought before justice.
Advocates were not always worthy of their profession, which often declined through their own doing. For example, the advocate Bernard made a grave censure of the forensic class of his times in the De Consideratione, which he addressed to the pontiff Eugene III (1145-53), formerly his disciple. But on the other hand it would be lengthy to make complete mention of the most celebrated advocates of the Roman Curia, especially of those who were decorated with the cardinalate (it suffices to recall the most celebrated, Giambattista De Luca, v.), or even elevated to the pontificate, as Benedict XIV.
According to the CIC it is within the power of the litigating parties to appoint one or more advocates (can. 1656, § 3), and the same advocate can also be constituted procurator (can. 1656, § 4); but the assistance of an advocate is always necessary for the accused in penal trials, and for all parties in trials of public interest or when the judge imposes it (can. 1655).
The advocate is appointed by the party or by the judge by written act (can. 1661); his mandate can cease by revocation (can. 1757, § 3, n. 1).
The agreements which, since Roman law, are forbidden to advocates are: the litis redemptio, the pactum de palmario and the pactum de quota litis (can. 1665; cf. analogously in Italian law: Cod. civ., artt. 1261 and 2233).
The conditions of canon law for being an advocate are the following: to be Catholic (only by exception can non-Catholics be admitted, can. 1657, § 1; women, although no specific prohibition exists, are excluded on the basis of the general principles of canon law), of age of majority, of unblemished reputation (can. 1657, § 1), a graduate in canon law or at least a good connoisseur of 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 traineeship at the S. R. Rota (Normae S. R. Rotae, art. 54, § 2; which traineeship is now required for all advocates in causes of nullity of marriage), and to have passed a special examination at the S. R. Rota. Advocates thus approved (rotal advocates) may practice before all ecclesiastical tribunals.
BIBL. G. B. Piazza, Eucologia Romana, Rome 1698; G. B. De Luca, Relatio Romanae Curiae, Disc. 46; G. Moroni, Curia romana, in Dizionario, XIX, Venice 1843, p. 28 and 29.
Giacomo Violardo-Guglielmo Felici
II. PROFESSIONAL MORALITY
In order to practice his profession worthily, the lawyer must possess the following qualities: competence, wisdom, diligence, justice, humanity.
The lawyer is required to have a sufficient knowledge of the legal order in general and of those particular legislative norms to which the cases for which his action is sought have a direct connection.
It is not enough to have an abstract knowledge of legal norms; one must also know how to apply them wisely to concrete cases. Such an aptitude is ordinarily acquired only through apprenticeship. A lawyer who has neither competence nor experience answering to the requirements of his profession and to the nature of the cases proposed to him is obliged either to suspend the practice of the profession or to have himself to be helped by others. And he may resume the profession only when he has acquired the requisite competence and the requisite experience; should he proceed otherwise, he is responsible for any damages that those who have recourse to his work may consequently suffer.
Generally one does not have the right to demand that a lawyer take on the defense of a particular case; however, if the lawyer does take it on, he must conduct the trial with diligence proportionate both to the importance of the case and to his contractual obligations: otherwise he is liable for the damages caused to the interested parties by his culpable negligence.
The lawyer must be just both in relation to the juridical-moral order and toward his clients. In relation to the juridical-moral order, in general terms it may be affirmed that whatever is lawful for the defendant or the plaintiff is lawful for the lawyer. Thus in criminal cases, he may undertake the defense of the accused even if he knows with certainty that the latter has committed the crime attributed to him. One who has committed a crime, on the one hand, is not obliged to reveal it spontaneously; on the other, he cannot be condemned unless according to the rule of law it is proved that he is really guilty. Therefore the lawyer may always carry out a defensive action to duly highlight the insufficiency of the evidence adduced against the accused. In civil trials the lawyer cannot undertake the defense of a case that is certainly unjust; were he to do so, he would incur the responsibility of effectively cooperating in inflicting an unjust damage on the other contending party. He may, however, support a case that is probably just. In that case, however, he is obliged to make the client aware of the objective situation; and he is also obliged to desist from his action should the case prove certainly unjust in the course of the trial. This is the common view. But there are not lacking those who distinguish between the lawyer's service and the case, and maintain that the former is always lawful when it conforms to a positive juridical order that is objectively upright, even if in fact it redounds to the advantage of an unjust case. Others observe that in such a hypothesis one would go against the very reason for being of the positive juridical order, which has been elaborated and exists to realize justice and not to be inverted into a means that renders its pursuit difficult or impossible. Conversely, all are unanimous in affirming that the lawyer can never have recourse to unlawful means to defend a just case, even if he should otherwise find himself unable to assert it, since it is never lawful to achieve good through evil. The lawyer must also be just toward his clients by demanding a remuneration in conformity with the law (if a law exists on the matter), with custom, or with the common sentiment of competent and honest persons, having regard to his special expertise and the concrete work sustained.
There are never lacking persons in need of protection and devoid of means. The lawyer, if he is able to do so, has the duty of charity to lend his work in their favor, even gratuitously. It is obvious that, once the commitment has been undertaken, he is bound by justice to follow the criteria set out above.
Bibliography5 works
Pietro Pavan