Conferences on the Virtues
By Fr. Bruno Cocuzzi, ocd
Number 68
Concerning Attorneys…
This is the
final article in the Section dealing with Distributive Justice and is entitled:
Concerning
Attorneys…
As you know, an
attorney is one who undertakes to present and defend the cause of parties to
litigation in public court proceedings.
This he does by
offering opportune advice and counsel to the parties privately, and making
legal arguments before a Judge either by oral argument or by a legal Brief
or both. Thus
1. It
is necessary that he be competent in knowledge of the law and in jurisprudence
(as in the case of a Judge). Otherwise
he would run the risk of doing grave harm to the parties he represents or
defends.
2. He
is bound in conscience to represent and defend ONLY those causes, which he
sincerely believes, are just.
3. In
the defense or representation of even just causes, he is obliged in justice to
use ONLY just means.
My textbook
offers some advise to Attorneys:
In civil matters
i.
If, in the course of litigation undertaken in
good faith, the attorney becomes convinced that his client’s case is not a just
one; he is obliged to tell that to the client and to withdraw from the case.
ii.
If the attorney is doubtful as to whether he can
win the case when brought to litigation, he is advised to tell that to the
client before proceeding further. But
he can accept the case, knowing that in the course of the proceedings, designed
to resolve controversies, it will become clear to him what the truth of the
matter is. He must then act
accordingly.
iii.
While it is still unclear (doubtful) as to where
justice lies in a legal controversy, the attorney ought to, but is not strictly
obliged to, try to persuade his client to reach an amicable settlement of his
dispute with the adverse party rather than to enter into litigation.
In
criminal matters (allow me to quote my author):
i.
An attorney may lawfully defend a criminal
defendant even if it is certain that he is the guilty wrongdoer, since among
civilized peoples the custom has evolved of assigning an attorney to everyone
judicially accused of a crime. Thus,
such a practice becomes just, if not in terms of the matter of the cause, at
least by reason of the laws, which give every accused a right to legal
representation. The common good demands
that apt and adequate legal counsel be provided for every criminal
defendant. Again though, the means by
which the said accused is defended must themselves be lawful and just.
(As
you know, the United States Constitution states that everyone accused of a
crime must be considered innocent until PROVEN guilty).
ii.
A prosecuting attorney cannot in justice seek
the conviction of a defendant whom he knows to be innocent, or very probably
innocent.
In
cases that are both civil and criminal. I am not sure that such hybrid creatures
exist in the Legal System that obtains here in the United States, but let me
cite what the author of my textbook writes concerning such cases in those
countries where they do exist.
The
attorney
i.
May lawfully conceal those facts, which would
hurt his client’s case. He may deny
them in the same way that the accused he is representing may deny them.
ii.
May not, however, resort to unjust and illicit
means, such as fraud, false witnesses or documents, or any other form of
deceit.
Finally,
concerning all of the above, an attorney who has harmed his own client or an
adverse party by resorting to unjust practices, is bound in conscience to make
restitution.
The
Obligations of an Attorney Toward His Client…
In virtue of
his office, an attorney is obliged to pursue the cause of his client faithfully
and diligently.
A. Before
accepting the case.
1. He
must carefully examine it to see whether capable of giving him adequate and
competent representation. If not, he is
to refer the prospective client to a more qualified attorney.
2. He
is to use that degree of diligence that is required by the seriousness of the
case. This includes inquiring (or
researching) into the justice of the case, and the probability of winning
litigation thereon. He must then
sincerely advise the client of his decision thereon, so that the client, so
advised, may not incur the cost of a futile litigation.
Should
the attorney culpably omit the above, he is obliged to make reparation
for any harm to the client that results there from.
B. After
agreeing to take the case the attorney is obliged faithfully and diligently to
expedite and present the case with the same fidelity and diligence, which a
prudent man would employ in, like situations.
Therefore, he would sin gravely
1. If,
in developing his arguments in favor of the client’s cause, he were to be
notably negligent in reading the pertinent documents, doing the legal
research [consulting the pertinent precedents], and constructing his legal
arguments. That is because this kind of
negligence would expose his client to the risk of serious harm.
2. If
he were deliberately to provide inadequate representation as a result of being
prejudiced in favor of the adverse party, or in any way secretly promoted the
cause of the adverse party by revealing privileged information or otherwise
betraying his client’s position.
This
is true even [and especially?] when he has already withdrawn from a case he is
convinced is not just.
Again,
any attorney guilty of the above is obliged in conscience to make reparation,
that is, restitution.
C. After
having pursued a case to a conclusion, or after having given legal advise, the
attorney may exact a just fee.
The
amount of the fee must be prudently determined in view of several factors:
1. The
[financial] condition of the client,
2. The
nature of the efforts expended,
3. The
amount of time spent thereon,
4. The
custom of the country and the locale.
Consequently,
a moderately greater fee may be demanded for above ordinary expertise or a
greater than usual amount of labor expended.
In
the event a flat fee is charged at the outset, in view of litigating the
controversy, and later the client decides not to go to court, the amount agreed
upon may be justly diminished proportionately.
From the beginning the flat fee was charged in view of compensating the
attorney for the efforts he then expected to expend, so that the diminished fee
would now cover just the legal services actually provided.
To
exact an unreasonably large fee would be to commit a sin of injustice.
As
a way of determining what is a just fee, my author advises us to consult the
factors put forth in determining what would be a just fee if charged by a
medical doctor. I repeat them here,
with changes relevant for an attorney.
a) Travel time involved
b) Length of time devoted to the case
c) Number of consultations with the client that
are required
d) Special expertise brought to bear on the case
And there could be other appropriate
factors.
Finally, with
regard to the indigent in need of legal assistance, my textbook states:
An
attorney is bound to provide free assistance to a poor person in extreme need
of legal services, even at the cost of great inconvenience to himself.
In
the case of a grave need, he must provide the services, provided the
inconvenience is not grave, but only slight.
When
the poor man’s need is not grave, he would be obliged to help only if there is
no other attorney available to provide the services, and then without
inconvenience to himself.
This completes
the Virtues related to Distributive Justice.
* * * * * * * * *
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