Chapter XLVI: Part II: SPECIAL MORAL THEOLOGY (Continued) (9)

1976. The Duties of the Defendant in Civil Cases.--(a) Before Sentence.--If the cause of the plaintiff is clearly just, the defendant as a matter of justice should recognize the claim and withdraw from the case. But a defendant may take exception to arguments offered by the plaintiff which, though actually valid, are not juridically made.

(b) After Sentence.--If the cause of the plaintiff is clearly just but loses in court, the defendant is obliged in conscience to pay the claim, even though the plaintiff does not appeal the case; he is also obliged in conscience to indemnify the plaintiff for the expenses of litigation, if the latter lost the case on account of unjust means employed by the defendant.

1977. The Duties of One Who Has Been Arrested on a Criminal Charge.--(a) If the accused person is innocent, he may take to flight or even offer positive resistance, provided he does no injury to those who attack him, and public scandal or disorder does not result from the resistance. This is according to natural law, which permits one to use self-defense against unjust aggression; but since the positive law requires the accused to submit to arrest that is not manifestly unlawful and empowers the officers to employ force against those who resist, it seems that generally the accused should permit himself to be taken under protest, if he cannot escape.

(b) If the accused person is guilty, he may take to flight, since he has not yet been sentenced as guilty nor officially deprived of his liberty; but he may not offer resistance to those who are sent to apprehend him, since their aggression against him is not unjust. The accused person, if not yet convicted, may even use indifferent means to escape from prison, such as sawing his way out or eluding the vigilance of the guards; but he may not employ sinful means, such as bribery of officials.

1978. Duty of the Accused to Plead Guilty, if Questioned by the Judge.--(a) If the accused is innocent, he may not plead guilty, as is clear. If to escape most grave evils he did plead guilty, he would be guilty of lying (if under oath, of perjury), but not of self-defamation; for, as the owner of his reputation, he has the right to sacrifice it in order to escape greater evils. Neither would he be guilty of suicide, according to some, if the death penalty were the consequence of the confession; for his purpose would be to avoid what he dreaded more than death.

(b) If the accused is guilty, he must reply truthfully, if the judge has the right to ask the question; for if the judge has the right to question, the accused has the obligation to answer, even though unpleasant things will befall him in consequence.

(c) If the accused is guilty, but the judge has no right to ask about his guilt (that is, if the judge does not question juridically or according to law, or if he questions from a false presumption of guilt), or if the accusation cannot be proved juridically, the accused is not obliged to answer. He may keep silence or evade the truth, but it is not lawful to lie.

1979. Legal Right of a Judge to Question a Prisoner about His Guilt.--(a) According to older legislation a judge had this right, and could enforce it by torture, when the common good was involved and the guilt of the prisoner was likely on account of infamy or manifest indications of crime or half-proof of guilt. In itself, this practice was not opposed to natural law and had some good results; but it was open also to many abuses. Some moralists teach that a judge cannot impose a grave obligation of confessing guilt in capital or similar cases, if the accused has otherwise a hope of escape and no great evil is likely to befall the common interests by reason of an acquittal. They argue that human law cannot oblige so rigorously as a rule.

(b) According to modern civil legislation the right of exacting a confession is denied to a judge. Thus, according to American law no person may be compelled “in any criminal case to be a witness against himself” (Constitution, Article V). In American law the plea of not guilty is not a lie, even though the accused knows that he is guilty, for, as everyone understands, the plea means either that one is innocent or that one is using the privilege of not confessing. Neither is it considered a lie to say that an unprovable charge is a calumny, for an accusation that cannot be proved juridically is juridically a calumny.

(c) The general law of the Church rules for ecclesiastical processes that, when the judge questions the parties-litigant, they are obliged to answer and to confess the truth, unless the question is not legitimate (e.g., questions about irrelevant or privileged matters, or questions made in a captious or leading manner), or the answer would incriminate the parties themselves (Canon 1743). Neither is an ecclesiastical judge permitted to put an accused in a criminal case under oath to tell the truth (Canon 1744). An instruction of the Holy Office of 1866 required that the guilty party in a case of solicitation should confess, but the instruction was directive rather than preceptive. Particular law (e.g., the statutes of a Religious Institute) might perhaps prescribe confession by an accused, but most Constitutions of Religious Institutes bind only under penalty, and, as for the rest, an ecclesiastical superior could at most advise, but could not impose, confession by an accused.

1980. Rights and Duties of Accused in Conducting His Own Defense.--(a) In Reference to Judge or Attorneys.--The accused, if questioned, may not conceal the truth by lies, ambiguities, or half-truths, since these are evil means, nor may he use evasion if he is lawfully interrogated. But if the question put to him is unlawful, he may evade an answer. It is commonly held that lies told in giving testimony or evidence are not necessarily mortal sins, as there may be no perjury committed or grave harm done another by reason of them (e.g., when an innocent man “doctors” a paper and thereby without harming anyone escapes from an unjust sentence).

(b) In Reference to the Opponent or His Witnesses.--The accused has the right to disclose secret but real crimes of the accusers, when this is an exercise of his legal right of taking exception to the witnesses as incompetent, or of his natural right of clearing himself of the charge against him. It makes no difference whether the evidence of the accusers is true or false, whether given according to the order of law or not. But he must not go beyond the limits of moderate self-defense (see 1826). Innocent XI condemned the proposition that it is probable that calumny may be used without mortal sin as a defense of one’s justice or honor (Denzinger, n. 1194).

1981. If the accused objects secret crimes of the opposition, he must beware of injustice or uncharitableness. (a) Thus, it is unjust to disclose crimes that cannot be proved, or that are irrelevant (e.g., it may be irrelevant to prove that the person who testifies that the accused committed murder is himself a fornicator, but it would be relevant to show that this witness is a liar, or dishonest, or an enemy of the accused), or that need not be revealed (e.g., if the witness’s testimony can be overcome by showing that the witness is weak-minded or under obligations to the opposition, it is not necessary to defame him).

(b) It is uncharitable to disclose a crime, if the witness will suffer far more from this defamation than the accused would suffer from the testimony. If, however, the witnesses are giving false evidence of their own accord, they take the risk of revelations by the defense.

1982. Rights and Duties of an Accused Who Has Been Found Guilty.--(a) Appeals.--It is lawful to appeal from a sentence that is unjust (whether because of the innocence of the accused, or of the illegality of the process), because appeal is a means of self-defense granted to the innocent. It is not lawful to appeal from a sentence that is certainly just, merely in order to cause delay or to defeat an adversary; but one may make an appeal when there are just reasons (e.g., in criminal cases the hope of getting an easier sentence or of prolonging life, in civil cases the discovery of new proofs, or of probable arguments against the sentence given). But one who has pledged his word not to appeal from the decision of an arbitrator should abide by his promise, and there is no appeal from the final decision of the highest court, which in the Church is the Roman Pontiff (Canon 1880), and in the State the Supreme Court.

(b) Escape from Prison.--If the sentence was unjust, it is lawful to escape, unless the means employed are intrinsically evil (e.g., killing of guards), or the results will be more harmful than continuance in prison (e.g., the overthrow of public order, the too great risk of the attempt to escape). If the sentence was just, there are various opinions on the lawfulness of flight. Some think it is never lawful, because a just sentence is a precept of authority and should be obeyed; others think that flight is lawful in grave cases (e.g., when the prisoner has been sentenced to death or to life imprisonment, or when the conditions of prison life are unbearable, because human law cannot impose as a normal regulation what is too difficult for human nature); still others think that flight is always lawful, because the court sentence is that the prisoner be forcibly confined, not that he remain in prison voluntarily. But one is not necessarily bound to escape (see 1857).

(c) Resistance to Sentence.--If the sentence is unjust, resistance is not unlawful _per se_, because one has the right of self-defense against unjust aggression (Ezech. xxii. 27). Hence, if one were condemned to execute oneself (e.g., by taking poison), the common opinion is that the sentence would be unjust (see 1856), and therefore not obligatory. If the sentence is just, even though it be a capital sentence, resistance is not lawful, for the judge who duly pronounces sentence on a guilty man has the right to obedience (Rom., xiii. 1-5).

1983. Jail-Breaking and Restitution.--If one does not sin by jail-breaking, is one bound to restitution for the damages connected with the escape?

(a) If the damages are not caused by, but only follow accidentally on the flight (e.g., escape of other prisoners, dismissal of guards), there is no obligation to make restitution for them; for the flight would not be the efficacious or the unjust cause of such damages.

(b) If the damages result from the flight as from their efficacious and unjust cause, there is an obligation of restitution (see 1763), as when a prisoner, in order to escape, does needless damage, or damage out of all proportion to the evil from which he seeks to escape. But ordinary property damage, such as a hole cut in a wall, does not seem unjust, if there is no other way to get out.

1984. Reliability of Witnesses and Testimony.--A witness in court is a person who declares during a judicial proceeding that he knows some statement, deed or omission in reference to the matters at issue. The testimony of witnesses has proving force only in so far as these persons appear to have knowledge of the matters on which they testify and appear to be truthful. Hence, certain kinds of witnesses and certain kinds of testimony are unreliable.

(a) Thus, a witness is unreliable either through his own fault (e.g., if he is regarded in his community as below the standard in truthfulness, or has the reputation of being a calumniator) or without his own fault (e.g., if his powers of observation or his memory are subnormal, or he is devoted or hostile to or dependent on one of the contending parties). It is a duty, indeed, to presume good of a person in whom the opposite does not appear, if he is the only one whose interests are concerned; but when there is danger to a third party, one must be on one’s guard (see 1744). Hence, St. John admonishes not to believe every spirit (I John, iv. 1).

(b) Testimony is unreliable because of the number of the witnesses (e.g., one witness is often legally insufficient to prove, especially in graver matters), or the quality of their evidence (e.g., because in substantial points a witness contradicts himself or is contradicted by his co-witnesses, or because there are signs of collusion or conspiracy), or the counter-evidence of the opposition.

1985. Obligation of Freely Appearing as a Witness.--(a) There is an obligation of commutative justice to offer testimony, if one is under contract to do this, as when one is hired as a detective or agent to gather evidence against lawbreakers.

(b) There is an obligation of legal justice to testify, even at the cost of serious inconvenience, if the testimony is necessary for averting a serious evil that threatens the common welfare. A person who knows of a plot against the peace of the State should bring this to the notice of the authorities, even at the risk of his life. But a person who knows that a crime has been committed, is not bound to give witness about it, if the escape of its author will not be a serious detriment to public or private welfare (e.g., if one knows that an apparent case of suicide was really a homicide committed by accident).

(c) There is an obligation of charity to testify (but not at the cost of serious inconvenience), if the testimony is necessary for averting a serious evil that threatens a private person. A person who can prove that the evidence which is about to hang an innocent man is false should testify for the accused, unless the testimony will bring an equal evil upon himself.

1986. Obligation of Appearing under Lawful Citation to Give Testimony.--(a) He who avoids citation (e.g., by flight into another jurisdiction, by concealment of his person when the subpoena is being served), more probably does not violate legal justice by this act, since a precept that has not been received cannot be violated. (b) He who disregards citation offends legal justice, since the summons to appear has a claim on his obedience. But it does not seem that he violates commutative justice, unless the party for whom he could testify has a strict right to the testimony.

1987. Obligation of Witness to Answer Truthfully.--A witness who is questioned legitimately (i.e., by one who has the authority to question him) and juridically (i.e., according to the form and order prescribed in law) is obliged _per se_ to answer according to the truth as he knows it, for one is bound to obey a superior when he gives a lawful command. But there are exceptions to this rule _per accidens_, that is, when a higher law exempts one from the necessity of divulging a certain matter, or when the question asked refers only to what one knows juridically. In all these cases the witness may answer that he does not know, for he has no knowledge that he may, or should, or must use.

(a) Thus, the natural law permits reticence when a revelation would work notable damage to the witness or those closely related to him, for the command of a superior does not oblige under such great inconvenience. This supposes, of course, that the revelation is not required in order to prevent a great harm to the commonwealth or a far greater harm to a private person than that which threatens the witness. A person who knows that he will be assassinated if he testifies against a powerful criminal is not ordinarily bound to make the sacrifice. Canon and civil law excuse witnesses from making disclosures that would expose them to prosecution or penalties (see Canon 1755, Sec. 2, n. 2).

(b) The natural law commands reticence when a revelation would be injurious to divine, public or private rights.

1988. Matters Regarding Which a Witness Should Not Testify.--There are certain cases in which natural law forbids a witness to make known a fact about which he is questioned.

(a) A witness may never testify to matters known to him only from Sacramental Confession, for to break the seal of confession is an injury to the rights of God. In an ecclesiastical process a priest may not testify from Sacramental knowledge, even though he has the penitent’s permission (Canon 1757, Sec. 3, n. 2).

(b) A witness may not testify as a rule to matters that are known to him only in a confidential way, such as the communications between lawyer and client, physician and patient; for the public interest as well as the interest of individuals requires that generally there be security against defamation for those who give their confidence to others, especially if they are in great need of professional assistance. Privileged communications are recognized both in Canon Law (Canon 1755, Sec. 2) and in civil law. But knowledge obtained as a secret may be used when this is necessary in order to avert a great evil that threatens the public welfare or the welfare of an innocent person, whether this person be the giver of the secret, or a third party, or oneself; for to oblige to secrecy in these cases would be to throw protection around crime. Thus, a lawyer may make disclosures of confidential knowledge, if this is necessary in order to defend himself against the false accusations of a client, or to prevent a crime which the client intends to commit.

(c) A witness may not testify to matters about which he has unjust knowledge (e.g., by wire-tapping, by unjust coercion, by intoxicating another person, by reading private papers without permission), for, as the knowledge was unjustly acquired, it cannot be justly used (see 2420).

1989. There are also certain cases in which a question refers only to what the witness knows juridically, or in which he is called upon to answer according to the mind of the questioner.

(a) If the witness is asked to state what he knows about a case, he is not obliged to mention what he merely thinks or what he is uncertain about; and if he is asked what he has heard, he is not obliged to state what was told him by persons of poor authority.

(b) If he is asked whether the accused was to his knowledge guilty of a crime, he is not obliged to mention an act of the accused that was unlawful but done in good faith. But in a civil case, in which inquiry is made about juridical faults, the witness should testify even to the existence of delinquencies in which there was no element of theological fault.

(c) If he is the only one who has knowledge of a delinquency and it will be certainly useless for him to testify about the matter without corroboratory evidence, it seems that he may keep silence about what he knows. But if the testimony of one witness is sufficient according to law, then the witness should speak of the facts known to him.

1990. Sinfulness of False Testimony.--When we speak of false testimony, we mean testimony which the witness knows to be false.

(a) By reason of his false oath, the witness is guilty of perjury, which is a grave sin against the virtue of religion.

(b) By reason of the injury done by the testimony, the witness is guilty of injustice, which from its nature is a grave sin. In the Decalogue (Exod., xx. 16) false testimony is forbidden among the sins against justice: “Thou shalt not bear false testimony against thy neighbor.” Legal justice is offended, since false testimony is an act of disobedience to lawful authority, and usually commutative justice is also violated, since by false testimony one of the litigants as a rule suffers loss.

(c) By reason of the deliberate falsehood, the witness is guilty of lying, which, however, is not always a grave sin.

1991. It may happen then, though rarely, that false testimony is only a venial sin, for example, when the witness is not under oath and he gives false testimony in a matter of small importance, or without full deliberation on what he is saying, or when he forges or corrupts a document to supply for another that has been lost and from which his certain right could be proved.

1992. Obligation of Witness to Make Restitution.--The obligations of restitution by a witness on account of failure to perform his duties properly are as follows:

(a) if the witness has not sinned against commutative justice, there is no obligation of restitution (see 1753). Hence, if he has evaded testimony to which he was bound in legal justice or charity alone, he is guilty of sin, but he is not held to restitution. Similarly, if he has given false testimony and thereby deprived the State of a fine under a penal law, or saved a guilty party from punishment, he has sinned against legal justice, but is not obliged to make good the fine or pay damages;

(b) if the witness has sinned against commutative justice, materially but not formally, he is not the gravely guilty cause of damage, and hence is not obliged from justice (but there may be an obligation from charity) to make restitution (see 1764). But if he perceives that his testimony was materially or venially unjust and will cause serious damage, he is obliged to recall his testimony, or in some other suitable way prevent the damage, if this is possible (see 1769);

(c) if the witness has sinned against commutative justice formally, he is the efficacious and culpable cause of the damage that results, and hence is bound to restitution, unless there is an excusing cause (see 1797 sqq.). Thus, if false testimony, or testimony about matters which the witness had no right to disclose, has led to the death sentence for an innocent man, the witness who gave that testimony must retract, even at the risk of his own life; for in equal danger the rights of the innocent have the preference. Again, if Titus by false testimony has saved Balbus from paying damages for injury done to public property, Titus must make restitution for the loss caused, if Balbus will not make reparation.

1993. Is a witness guilty against commutative justice when he unlawfully conceals facts and damage results thereby to another person? (a) If by concealment is meant the destruction of evidence (e.g., the burning of a will or letter or forging), the witness or other person responsible is guilty of a positive act of commutative injustice and is bound to restitution. (b) If by concealment is meant silence about material facts that the witness is lawfully called on to disclose, distinction has to be made between the witness who is not obliged from contract to give evidence and the witness who is so bound. The former witness is a negative cooperator and sins against legal justice and charity; the latter witness is a negative cooperator and sins against commutative justice (see 1780).

1994. Payment of Witnesses.--Is a witness permitted to accept pay for giving true and lawful testimony?

(a) For the testimony itself a witness may not accept pay, for he is bound to tell the truth freely, just as the judge is bound to dispense justice freely.

(b) For the expenses he incurs and the time he loses by reason of his assistance in court, he may accept pay; since, as St. Paul says, he who does a service for another is not required to meet the expenses of the service (I Cor., ix. 7). Both Canon and civil law make allowances for suitable compensation to be granted to witnesses (see Canons 1787, 1788). But if a witness receives compensation in excess of what is allowed by law, the court and the adverse party have a right to be informed of this.

1995. Lawyers.--Lawyer is the general term used to designate all those who are versed in the law and who give assistance to others in legal ways during lawsuits or apart from them.

(a) Thus, apart from lawsuits a lawyer may act as legal adviser, giving instruction, information or direction on rights and duties under the law.

(b) During a lawsuit he advises about the case (jurisconsult) or carries on for clients the prosecution or defense in a court of justice. The lawyers who attend to only the more mechanical parts of a suit are sometimes called attorneys, in distinction from counsellors or counsel, who argue and plead in the courtroom, but generally “attorney-at-law” and “lawyer” are synonymous terms. The counsellors are known in England as barristers when they conduct cases in superior courts; they are called solicitors in chancery, and advocates in Roman law. Canon Law distinguishes between the advocate who defends, and the procurator who represents, a litigant; the former argues for his client by invoking the law in his favor; the latter acts merely as the representative of his client and is restricted by his commission.

1996. The Qualifications of Lawyers.--(a) The mental and moral requisites are competency in the knowledge of their profession and devotion to justice, morality, the constitution, and law (see 1943). A lawyer should be zealous for the dignity and reputation of the bar and loyal to associates, but not afraid to take action against practices that are detrimental to his honorable profession.

(b) The legal requisites for practising as a lawyer vary with the place or government. In Canon Law, it is necessary that an advocate be a doctor or expert in ecclesiastical jurisprudence, that he be twenty-one years of age, duly approved, etc. (see Canons 1657 sqq.).

1997. The Duties of a Lawyer in Introducing Cases.--(a) He may not stir up litigation, as a means of bringing himself occupation and gain. The Catechism of the Council of Trent, Translated into English with Notes (Joseph F. Wagner, Inc., New York City, 1923), p. 475, denounces this practice as among the chief violations of the Tenth Commandment. Among lawyers it is regarded as unprofessional, and at common law it is an indictable offense.

(b) A lawyer may not take or assist an unjust cause--one, namely, that is in opposition to moral or positive law, as when a party comes to him with the request that he conduct a spite case whose purpose is to harass or oppress an innocent person. He who defends injustice is a cooperator, and is therefore guilty (see 1779). But if a case has a good foundation in law, the lawyer is not bound to inquire into the subjective dispositions or the conscience of the client in the matter, and he may take the case even though he does not know that the client is in good faith.

(c) A lawyer should not refuse a just cause, merely because the person he is asked to assist is indigent or not in favor. Commutative justice does not oblige him to offer his services to one in need of them; but there is a duty of legal justice to give his best efforts if he is appointed as counsel for a poor person, and also at times a duty of charity to do this if he is asked for legal help by one who is in need.

1998. The precept about works of mercy, being affirmative, does not oblige for every instance, but only when the due circumstances of time, place, opportunity, etc., are present. Hence, a lawyer is not obliged by charity to devote himself to every deserving case that is presented to him (see 1227). (a) Thus, as to place, charity does not require that one go about looking for the needy, but that one help those who are at hand. (b) As to time, charity does not require that one take care of future needs, but that one help those who are in present distress. (c) As to persons, charity does not require that help be given to all alike, for some have a greater claim on one’s charity than others (I Tim., v. 8). (d) As to need, charity does not command that help be given those who can easily help themselves, or who can obtain it from third parties who are better fitted to bestow it.

1999. Charity does not oblige to works of almsgiving, if the inconvenience to the donor is out of proportion to the distress from which the donee is rescued (see 1158). The inconveniences that correspond with the various degrees of distress are thus explained by theologians:

(a) if distress is extreme (e.g., a prisoner is about to be sentenced to death unjustly), a proportionate inconvenience is, according to some, a grave loss, or, according to others, the loss of at least a part of the necessaries of one’s state (see 1231, 1251);

(b) if distress is very grave or grave (e.g., an accused man will be sentenced unjustly to a long and harsh imprisonment), the loss of goods without which one’s state of life cannot be maintained so becomingly is, according to one opinion, not excessive; but, according to another view, any notable loss or inconvenience is excessive;

(c) if distress is ordinary (e.g., an accused will be unjustly sentenced to a small fine), the loss of goods that are purely superfluous is, according to some, a proportionate inconvenience, but others think that only such assistance need be given as will cause no inconvenience whatever, such as advice or other service given during spare times.

2000. When Is a Cause to Be Regarded as Unjust?--(a) In civil cases the suit or defense is unjust when it clearly has no moral right. A lawyer who recommends litigation in a case of this kind is unjust to the adverse party, if that party loses; he is unjust to his client, if the client loses and is thus put to unnecessary expense. Generally speaking, a Catholic lawyer ought not to accept a divorce case. The lawyer’s position is different from that of a judge. Occasionally a judge cannot refuse a case without serious inconvenience to himself (see 1949, 1997); the lawyer, however, is free to accept or refuse these cases. The general prohibition is founded on the fact that in this country most divorce cases are means to an invalid remarriage. Some theologians argue that since it is the remarriage, not the divorce, that is intrinsically evil, a lawyer might accept a divorce case for a very grave reason, e.g., to relieve desperate financial conditions. In practice, however, owing to the danger of scandal, the exception would be rare. Exceptions which are possible include cases where divorce is sought for a marriage that is invalid _coram ecclesiam_, e.g., civil marriage of Catholics, or simply for the settlement of civil effects Where no danger of remarriage is involved. In all cases involving Catholics, the lawyer should bear in mind the necessity imposed upon Catholics by the Third Council of Baltimore to consult ecclesiastical authorities before seeking civil separation from bed [and board.]

(b) In criminal cases the prosecution is unjust if the accused is clearly innocent. But the defense is not unjust, even though the accused is known to be guilty, for both natural and positive law give the accused a right of defense, and hence he may choose or may be given an advocate, in spite of his guilt.

2001. Duty of a Lawyer When the Justice of a Cause Is Doubtful.--(a) In a civil cause, the lawyer may act, whether for the plaintiff or for the defendant. He may even take a case whose justice seems less probable, for the purpose of the trial is to settle the doubt, and not infrequently the cause that seemed doubtful or less probable at the outset is vindicated by the examination. Some moralists distinguish for cases in which the doubt is one of fact between the defendant and the plaintiff: if the former’s case is less or equally probable, they say, one may take it, but not so if this is true of the latter’s case.

(b) In a criminal case, when life, reputation or other grave issue is involved, the common opinion is that a lawyer may not prosecute if the case of the people is doubtful or less probable, but he may defend, as was just said, even though he is certain that the accused is guilty. The office of the prosecutor is not necessarily to secure a conviction, but to see that justice is upheld, while the office of the defender is to take care that an accused person is deprived of no right or protection that he should have under the law.

2002. If a lawyer through ignorance takes an unjust case, thinking it just, he is excused or not excused according to the character of his ignorance (see 28, 249). (a) Thus, antecedent ignorance excuses from sin and restitution; (b) concomitant ignorance excuses from restitution, but not from sin; (e) consequent ignorance excuses from neither sin nor restitution, if it is crass or affected, but it diminishes responsibility, if it is only slightly sinful.

2003. Duty of a Lawyer Who Discovers that a Case Is Really Unjust.--(a) A lawyer who took a case in the belief that it was just, but discovers that it is really unjust, owes it to himself to abandon the case, for he cannot honorably cooperate with iniquity. The same principle applies, if a client insists upon unjust courses in the support of his case, even though the cause itself be just.

(b) The lawyer owes it to his client in the hypothesis we are considering to preserve the latter’s confidence inviolate (see 1988). He should endeavor to persuade the client to abandon the case; but since the client’s case is unjust, he may not recommend a compromise, except perhaps in reference to expenses.

2004. Lawyer’s Duties towards Client.--Since every contract depends on the mutual consent of the contractants, and since the purpose of the person who retains a lawyer is to receive honest advice and assistance and to give in return a fair compensation, it follows that the lawyer’s duty to a client is to give what is thus expected and not to exact more than this deserves.

(a) Before the case the lawyer should be perfectly candid with the client as to the advisability of litigation or of the employment of himself as counsel in the case. If there is a reason why he would be a less desirable advocate in the case, he should speak of this, so that his consultant may have freedom of choice. He should also study the question presented to him, and give his honest opinion on the strength of the case. If a fair and amicable adjustment outside of court can be made, the lawyer should recommend that this be done, and if it is not clear which party is right, he should advise a compromise.

(b) During the case the lawyer should be faithful to the interests of his client and diligent in the affairs for which he is engaged. Loyalty demands that the advocate give his undivided devotion to his client (e.g., he may not give assistance to the adverse party, he may not receive gifts or compensations from that party; see Code, Canons 1666, 2407), and that he respect the client’s confidences (e.g., he may not use to the client’s disadvantage the information given him). Diligence requires that the lawyer use his best ability and efforts to the end that the client, no matter how poor or unpopular or persecuted, may receive all the remedies or defenses that the law grants him, and that his case may be terminated with all possible speed.

(c) After the case he should be honest in his charges and true to the confidence that was reposed in him. The compensation for the lawyer’s services should be just, that is, a fair return for what he gave. The amount of the fee should be fixed, therefore, by such standards as the law or custom, or by the value of that which the lawyer devotes to the case (e.g., his time and labor, his loss of other employment or prospects, the risk he takes in undertaking the case), or of that which the client receives (e.g., the amount which he gains, the benefit he receives). The wealth of a client does not justify an excessive charge, but the poverty of the client makes it a duty of charity at times to lessen the charges or to make no charges at all (see 1236-1239). It is clear that a lawyer should not compensate himself from the client’s business contrary to the latter’s just wishes.

2005. Lawyer’s Duties towards Other Parties.--The duties of the lawyer to his client do not exempt him from certain duties to other persons who have a part in the trial; for he is responsible to his own conscience and cannot act on the principle that he must win at any cost, or that the client takes all the blame for anything dishonorable that is done.

(a) Thus, respect is due to the judge and politeness to the opposite party, his lawyers and witnesses. Abusive language and improper personalities, therefore, should not be resorted to, and customary courtesies should be shown.

(b) Truth and fair dealing are due to those to whom or against whom the pleading is directed. It is contrary to truthfulness to cite statutes or decisions that are no longer in force, to misquote laws, testimony or the language of opponents, to assert as a fact what has not been proved, to introduce false witnesses or documents, to coach clients or witnesses in untrue stories, to resort to quibbles or sophistry, etc.; it is unfair to attempt to gain special favor from a judge or a jury, to make improper statements or remarks with a view to influencing the jury or the bystanders or the public; to conceal the arguments upon which one relies until the opposition has no opportunity to reply; in a word, to practise any of the tricks of pettifoggery.

2006. Concealment of Truth in Presenting a Case.--Is concealment of the truth in the presentation or defense of a case sinful?

(a) If concealment is not unjust or mendacious, it is lawful. Indeed, a lawyer should conceal such facts as would be harmful to his own case (e.g., incidents that are really of no moment, but that would create prejudice against his client), or as he has learned in confidence. This is not unjust, since the opposite party has no right to the knowledge, and it is not deception, since it does not cause but merely permits others to draw erroneous conclusions. Neither is an advocate bound in justice to point out to the opposition matters favorable to their case, of which they are ignorant or which they do not notice.

(b) If concealment is unjust or mendacious, it is unlawful. Thus, if a lawyer discovers that serious fraud has been practised or that the court or the opposition has been harmfully imposed upon, he is unjust if he takes advantage of this through silence. Similarly, a prosecutor is unjust if he suppresses facts or testimony or papers that would establish the innocence of an accused person.

2007. The Sinfulness of Introducing False or Corrupted Documents.--(a) Truthfulness is sinned against by this practice, whether the document be entirely fictitious or a copy substituted for an original that has been lost, or an authentic instrument has been changed or interpolated (see 1980 a, 1991).

(b) This practice is also against legal justice, since the law requires that no misrepresentations be made about the evidence produced. Indeed, this is a very serious matter, for, if it were ever permissible to tamper with documentary evidence, a way would be opened to frauds innumerable to the great detriment of the public.

(c) Commutative justice is offended by this form of dishonesty, if the cause defended is not certainly just; for the opposite party, since justice is perhaps on his side, has the right that he be not defeated by untruthful means. But if the cause defended is certainly just, there is not _per se_ any violation of commutative justice, since the adverse party is not deprived of anything that is his, but is rather prevented from doing injustice; _per accidens_, though, there might be commutative injustice (e.g., if the use of a forged exhibit was known to be risky and did actually lose the case for a client).

(d) Charity to self is violated by this deception, since a lawyer should not value his client’s interests above his own conscience, reputation and prospects.

2008. When a Lawyer Is Bound to Restitution.--(a) Unjust damage obliges to restitution (see 1763), and hence a lawyer must indemnify his client or the opposite party for the losses either one suffers through his unjust conduct. The client has a right to restitution if he was put to unnecessary expense because his lawyer did not tell him the case was hopeless or too risky, or if he lost a case because the lawyer was very incompetent or negligent or helped the opposite party, or if he was injured in his reputation or prospects by the violation of his confidences. The opposite party is entitled to restitution if he lost a right or was condemned because the lawyer unjustly took the case against him, or if he suffered other injuries because the lawyer employed foul means to his disadvantage. If a lawyer acts as the mandatary of his client in the use of injustice, the duty of restitution rests primarily on the client and secondarily on the lawyer (see 1783); if the lawyer alone is guilty, he is responsible for all the damage done. There is no duty of restitution if only legal justice is violated (e.g., if some deception is practised in order to win for the side that is in the right), or if charity is wronged (e.g., if one refuses to take the case of a person who is in need).

(b) Unjust possession also obliges to restitution (see 1770), and hence a lawyer who appropriates goods of his client against the latter’s right, or who charges exorbitant rates for his services, or who drags out a case for lucre’s sake, or who has not refunded when he withdrew from a case, should restore his ill-gotten goods. If the amount of a fee is settled by law, an attorney who takes more than the legal sum does not necessarily incur the duty of restitution. All will depend on the character of the law, whether it is penal or preceptive, and if preceptive, whether it obliges in virtue of legal or of commutative justice.

2009. Unjust Words.--We shall now take up the injustice that is done through words spoken outside of a judicial process, or the classes of verbal injustice that are not peculiar to courts, but are committed on all sorts of occasions, public and private. The principal sins here are distinguished according to the different injuries intended by the sinful speaker, and are as follows:

(a) sinful words that signify or effect in another person the evil of guilt, thereby depriving him of benefits that are connected with virtue. Some evil speakers deprive their neighbor of tributes that are paid to virtue by others, such as honor (injury by contumely), fame (injury by defamation), friendship (injury by whispering); while other evil speakers deprive a person of the tribute of virtue paid by his own conscience, namely, self-respect and peace of mind (injury by derision);

(b) sinful words that signify or effect against another person the evil of punishment. The words are known under the general name of cursing.

2010. Contumely.--Contumely is unjust dishonor shown to a person in his presence.

(a) It is unjust, and hence those are not guilty of contumely who speak words that are not honorable to persons deserving of reproof (e.g., in Luke, xxiv. 25, Our Lord calls the two disciples “foolish and slow of heart”; in Gal., iii. 1, St. Paul addresses the Galatians as “senseless”). Similarly, it is not contumelious to call another person by a name that sounds somewhat disrespectful, if this is done in banter or pleasantry and will be taken in good part by the other and do no harm. Thus, to send a comic valentine or good-naturedly to ridicule some of the spectators at a farce is not contumelious as a rule, since most persons are not galled by these gibes, nor are the jokes taken seriously as a rule by the public. But care must be exercised both in serious and playful rebukes to keep within moderation. St. Augustine declares that even in corrections one should use reproachful terms sparingly and only in case of great necessity.

(b) Contumely is dishonor, and so it is distinguished from injurious words that offend some other right (e.g., detraction offends reputation). Honor is an external manifestation of the respect felt for another’s excellence or superiority in some natural or supernatural perfection given by God, such as virtue, authority, nobility, rank, wealth, etc. Contumely, therefore, is either negative, as when one ostentatiously refuses to show another the honor due him (e.g., the salute or title or deference which custom allows him), or positive, as when one manifests signs of disrespect (e.g., names derogatory to virtue or intelligence, or which mean that the person addressed is vile and contemptible).

(c) Contumely is shown to another in his presence, that is, it is an affront directed to his person immediately (e.g., the mockery of Eliseus by the little boys near Bethel, in IV Kings, ii, 23), or mediately (e.g., the dishonor of David’s ambassadors by the Ammonites, in II Kings, x), or at least to his knowledge (e.g., the enemies of St. Paul in Phil., i. 17, who spoke of him insultingly in the expectation that their words would be carried to him).

2011. Are all persons deserving of honor? (a) If honor be taken in its strictest sense for reverence shown to a person who is one’s superior in some good quality, or for veneration for the proper excellence of mankind (viz., virtue), then honor cannot be shown except to those who are more exalted than oneself or to those who are virtuous. (b) If honor be taken in its wider and more usual sense for respect for a good quality, natural, moral or supernatural, in which a neighbor is more worthy at least than some others, then honor can be shown to every rational creature (except the damned, who are irretrievably wicked and outside the pale of friendship); for there is no one, however bad or lowly, in whom there is not something that deserves respect. St. Paul exhorts Christians to be beforehand in honoring one another (Rom., xii. 10), and he urges that each esteem the other as better than himself (Philip., ii. 3).

2012. Various Forms of Contumely.--(a) By reason of the signs used or the external form it takes, contumely is either in words (e.g., the names “thief,” “lunatic,” “bastard”) or in deeds that are equivalent to word (e.g., offensive cartoons or caricatures, insulting valentines or postcards, “poisoned pen” letters, lampoons, scurrilous or opprobrious gestures or acts, sardonic grins, mimicry).

(b) By reason of the thing signified or the contemptible quality that it ascribes to another contumely is also distinguished into reproach, which accuses another of sin (e.g., of drunkenness), revilement (_convicium_), which ascribes to another either a fault or its consequences (e.g., drunkenness or imprisonment, or diseases of alcoholism), taunting (_improperium_), which twits another with misfortunes or inferiority (e.g., his lowly origin or poverty or the favors one formerly showed him).

2013. Manner of Confessing Contumely in the Sacrament of Penance.--(a) Circumstances that are of an essential kind, that is, those that change the species or add a new species, must be mentioned (e.g., the fact that contumely was blasphemous or calumnious or scandalous or directed against a cleric or parents). (b) Circumstances that are merely accidental, such as those given in the previous paragraph, need not be mentioned, for they are merely various ways of committing the same sin of contumely.

2014. The Sinfulness of Contumely.--(a) From its nature contumely is a grave sin of injustice, for it robs one of honor, which is more prized than any other external possession, since it is a testimony to virtue and to the esteem of fellowmen honestly earned. Hence, men will often sacrifice health or wealth or life itself to save honor. He who calls his brother a fool is deserving of hell (Matt., v. 22), and the contumelious are classed with those who are delivered over to a reprobate sense (Rom., i. 30). But, as sins of the tongue are imputable only in so far as they express the mind of the speaker, contumelious words are gravely sinful only when they proceed from a direct purpose to inflict serious disgrace (e.g., Titus applies to Balbus an epithet that is not regarded as very abusive, but his purpose is to manifest his supreme contempt), or from an indirect intention to effect this (e.g., Claudius jokingly addresses Sempronius by a very disgraceful title, not meaning any great harm, but knowing that Sempronius will feel this deeply or that in the eyes of the bystanders he will be greatly dishonored).

(b) From the imperfection of the act or the smallness of the matter, contumely is made a venial sin. Thus, if one who is suddenly carried away by anger or who is not thinking of what he says calls another person a very vile name, there is not sufficient advertence for a grave offense; and if one who is acting with full deliberation addresses another in language that is only slightly disrespectful, there is not sufficient harm done to constitute a mortal sin.

2015. The gravity of the matter in contumely depends, not only on the character of the signs of disrespect, but also on the persons concerned.

(a) Thus, the less the respect which the offender owes the offended party, the less the offense. Hence, for a subordinate to call his superior a liar or an ass is a more grievous fault than for a superior to give the name to his subordinate.

(b) The less authoritative the word of the person who utters contumely, or the less evil animus that attaches to his speech, the less the dishonor and the sin. Thus, fishwomen were once notorious for vituperation, but little attention or weight was given to their words. A person of that character, then, might commit only a venial sin by a very abusive word, whereas a person of more respectable character would sin mortally by using the same expression. Similarly, when parents or teachers berate their subjects as fools, blockheads, dunces, etc., there is generally no bad spirit behind these exclamations, and hence the use of such expressions is not very sinful, even when correction is not being made.

2016. Is the gravity of contumely lessened by the fact that the offended person feels the injury less?

(a) If the contumely is felt less because the dishonor itself is less, the gravity of the sin is of course lessened, for example, if the person offended is less deserving, or the person who offends is not taken seriously (see 2015).

(b) If the contumely is felt less only because the person dishonored is very meek and patient, the gravity is not lessened, but is rather increased (see 1725). If the person offended does not feel the injury at all (e.g., because he is very thick-skinned or is very fortunate), less damage is done, but the wrong remains, otherwise, theft from the rich could be excused on the plea that they will not miss what is stolen.

2017. The Causes of Contumely.--(a) Pride is sometimes a cause, inasmuch as those who consider themselves better than others are quick to express the contempt they feel for others, if they hope that this will add to their own glory (Prov., xi. 2). But a proud person will just as often disdain to revile those whom he despises.

(b) Foolishness (see 1621) is sometimes a cause of contumely, for the foolish man speaks without thinking as he should or without caring what damage his words may cause (Prov., xx. 3). Hence, those who speak abusively to others merely in order to raise a laugh among the bystanders, little caring about the disrespect they show, cannot excuse themselves on the plea that it was all a joke.

(c) Anger is the usual cause of contumely, for the angry man seeks to show his revenge in some open and manifest way, and there is no easier or more ready means to this end than bitter, scornful or jeering words. Hence the danger of contumelious reprimands given by superiors. The subject will be enraged by the hard names applied to him, and the superior in his wrath will easily go to extremes, even of mortal sin, on account of the language he uses (e.g., exaggerated invective) or on account of circumstances (e.g., the scandal given).