LEGAL AID. - It is the exemption from judicial expenses in favor of the poor, who are unable to bear the costs of a trial. The text of can. 1914 of the CIC establishes the right of the poor to free legal aid: «The poor, if they are completely incapable of bearing the judicial expenses, have the right to free legal aid; if they are so only in part, they have the right to a reduction of the expenses».
Judicial expenses are those incurred during the course of the trial and concern the remuneration owed to the parties' advocates; those established for the translation, typing or printing of the acts, for the authentication of documents, for the issuance of certificates, etc.; those, finally, concerning the fees owed to experts and, possibly, on the judge's opinion, the indemnity to be given to witnesses (can. 1909 §§ 1-2).
Judicial expenses do not include the remuneration established for judges, who, both in ancient and in modern law, have always performed and do perform their work without demanding any compensation from the parties. This mandatory rule, if in the past it underwent exceptions, more frequent and broader in the civil forum, only for the delegated judge and in determined circumstances in the ecclesiastical forum, at present admits no derogation, as explicitly sanctioned in can. 1624.
Within the scope of judicial expenses are also included the so-called taxes which, as a rule, are paid on the occasion of the trial to the chancery of the tribunal. The difference between the one and the other consists in this: judicial expenses are actually incurred during the trial; taxes, on the contrary, are destined for the treasury of the Curia or of the chancery of the tribunal for the purpose of providing, in some way, for the general expenses of the administration of justice. In the canons, however, there is mention indiscriminately of both taxes and judicial expenses.
The CIC treats of free legal aid and of the reduction of judicial expenses in book IV, tit. XVI, chap. II, cann. 1914-16. Whoever wishes to avail himself of this right and finds himself in the required conditions, having presented the introductory libellus of the cause, will address a request to that effect to the judge, proving both his alleged poverty with those documents that the practice of each tribunal considers necessary, and the well-foundedness of the judicial action he has brought. The judge cannot admit the request unless he has first ascertained, also by means of secret information, the real economic standing of the petitioner's family and has consulted the promoter of justice. Once free legal aid or the partial reduction of expenses has been granted, however, this concession can be revoked in the course of the trial if either the alleged poverty proves not to be true, or the initiated course of the trial shows that the action brought is without foundation.
The judge, having granted free legal aid, assigns to the party one of the advocates admitted to practice before that tribunal; the designated advocate cannot exempt himself from the assignment received except for a just cause, approved by the judge, and if he arbitrarily or without justification should not accept the mandate received, he can be punished with fitting penalties, including suspension from office itself.
When, instead, a partial reduction of expenses is granted, the party admitted to this benefit, commonly called the benefit of out-of-pocket expenses, retains the right to choose an advocate of his trust. Such a right, however, cannot be recognized for one who has obtained free legal aid, so as not to give rise to possible frauds, given that the party, in one way or another, would compensate the advocate, while he would deny the tribunal the necessary expenses of the trial.
If advocates are lacking, the judge will ask the Ordinary to designate another suitable person to assume the free legal aid of the poor in tribunal. The canon also contemplates the case that one may personally, if he has the capacity, attend to his interests in trial. In certain determined causes, however, such as matrimonial ones, the assistance of an advocate is prescribed.
Bibliography2 works
Michele Federici