FREE LEGAL AID. — This is the exemption from judicial expenses granted to the poor, who are unable to bear the costs of litigation. The text of can. 1914 of the CIC establishes the right of the poor to f. l. a.: « The poor, if they are wholly unable to bear judicial expenses, have the right to f. l. a.; if they are unable to bear them only in part, they have the right to a reduction of expenses ».
Judicial expenses are those incurred during the conduct of the proceedings and include the remuneration due to the parties’ lawyers; those established for the translation, typing, or printing of the acts, for the authentication of documents, for the issuance of certificates, etc.; and, finally, those concerning the fees due to experts and, where appropriate, at the judge’s discretion, the compensation to be given to witnesses (can. 1909 §§ 1-2).
Judicial expenses do not include the remuneration established for judges, who, both under the former and under the present law, have always performed and continue to perform their work without demanding any compensation from the parties. This strict rule, although in the past it underwent exceptions—more frequent and broader in the civil courts, and only for the delegated judge and in particular circumstances in the ecclesiastical forum—admits no derogation at present, as explicitly sanctioned by can. 1624.
The so-called fees, which as a rule are paid to the tribunal chancery on the occasion of the trial, are also included among judicial expenses. The difference between the two consists in this: judicial expenses are actually incurred during the proceedings; fees, on the contrary, are intended for the treasury of the Curia or of the tribunal chancery, in order to contribute, in some way, toward the general expenses of the administration of justice. In the canons, however, both fees and judicial expenses are spoken of indiscriminately.
The CIC deals with f. l. a. and the reduction of judicial expenses in Book IV, title XVI, chapter II, cann. 1914–16. Anyone wishing to avail himself of this right and meeting the required conditions, after submitting the introductory petition of the case, shall address a request to this effect to the judge, proving both his alleged poverty by means of those documents that the practice of each tribunal deems necessary and the validity of the judicial action he has brought. The judge may not admit the request until he has first ascertained, including through confidential inquiries, the actual financial situation of the applicant’s family, and has consulted the promoter of justice. Once f. l. a. or a partial reduction of expenses has been granted, this concession may be revoked during the proceedings if either the alleged poverty proves untrue or the progress of the proceedings demonstrates that the action brought is without foundation.
Once f. l. a. has been granted, the judge assigns to the party one of the lawyers admitted to plead before that tribunal; the appointed lawyer may not decline the assignment received except for a just cause approved by the judge, and if he arbitrarily or unjustifiably refuses to accept the mandate entrusted to him, he may be punished with suitable penalties, including suspension from office itself.
When, on the other hand, a partial reduction of expenses is granted, the party admitted to this benefit, commonly called the benefit of living expenses, retains the right to choose a lawyer in whom he has confidence. Such a right, however, may not be granted to one who has obtained f. l. a., in order to prevent possible fraud, since the party would in one way or another compensate the lawyer while denying the tribunal the necessary expenses of the proceedings.
In the absence of lawyers, the judge shall ask the Ordinary to appoint another suitable person to undertake the poor person’s representation in court. The canon also contemplates the case of someone who, if capable, may personally attend to his own interests in court. In certain specific cases, however, such as matrimonial cases, the assistance of a lawyer is prescribed.
BBL.: S. D'Angelo, De gratuito patrocinio, in Apollinaria, 2 (1920), p. 514 ff.; F. Della Rocca, Istituzioni di diritto processuale canonico, Turin 1946, pp. 375–78. Michele Federici