TThhee CCaatthhoolliicc LLaawwyyeerr Volume 40 Article 6 Number 3 Volume 40, Spring 2001, Number 3 LLaawwyyeerrss aanndd AAddvvooccaatteess IInn TThhee JJuurriisspprruuddeennccee ooff SStt.. TThhoommaass AAqquuiinnaass Charles P. Nemeth, J.D., Ph.D., LL.M. Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl Part of the Catholic Studies Commons This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. LAWYERS AND ADVOCATES IN THE JURISPRUDENCE OF ST. THOMAS AQUINASt CHARLES P. NEMETH, J.D., PH.D., LL.M.* INTRODUCTION Truth is central to any lawyer's vocation. Legal advocates are cautioned that falsehoods are not only destructive to the justice system, but also to the soul. Acceptable legal advocacy can be tenacious, innovative, and creative, but not at the expense of justice and truth. Falsehoods of every sort are vociferously ccndemned by St. Thomas Aquinas. Lawyers are not to be a party to any unjust law, for to advocate the merits of an unjust law is to advance injustice. Unjust laws bind neither lawyer nor client. At trial or other legal proceedings, the lawyer needs to refrain from all falsehoods, suspicion, rumor, calumny, collusion and evasion. Those who engage in such tactics should be barred from the practice of law. If he or she is meritorious and factually grounded, Thomas insists that the lawyer aggressively pursue defense and prosecution using the wits given to him by God. These general insights extend to witnesses, the presentation of t This chapter is reprinted by permission of Greenwood Publishing Group, Inc., and will be forthcoming as Chapter 9, "Law, Justice, Lawyers and Advocates," in AQUINAS IN THE COURTROOM: LAWYERS, JUDGES AND JUDICIAL CONDUCT, by Charles P. Nemeth. This text will be made available in hardcover through Greenwood Press and paperback through Praeger Press in August of 2001. * Professor of Criminal Justice, the State University of New York at Brockport; Member of the Pennsylvania, New York, and North Carolina Bars. 40 CATHOLIC LAWYER, No. 3 evidence, and candor toward the tribunal. In sum, Thomas's portrait of a lawyer contains professional competencies, but more compellingly, a picture of the moral agent dedicated to virtue and truth. I. THE LAWYER IN THOMISTIC JURISPRUDENCE Lawyers do not escape Thomistic scrutiny, and are a topic of enormous importance in the legal theory of Thomas. Just as human law is necessary, laudatory, and foundational to civilization, so too is the lawyer who interprets, advocates, or challenges the legitimacy of any law. Lawyers specialize in the law as an instrument, in procedural and substantive legal settings. Employing the law as promulgation or act is only the starting point. Law, aside from being a juridical act, is by its proper nature, an ordination of reason and the subject of virtuous conduct. The foremost of such conduct is the virtue of justice itself. Lawyers clamoring for justice do so in a holistic sense, rather than upon the urging of individual clients. Lawyers, when carrying out their tasks correctly, remember the comprehensive definition Thomas attributes to law, which is avoiding individual preference, and retaining a rational prescription for the whole, for the good, for the universe. Thomas perceives the practice of law in both secular and spiritual terms. When deciding whether or not a lawyer should take or charge a fee for his or her advocacy, Thomas states, "[tihough knowledge of law is something spiritual, the use of that knowledge is accomplished by the work of the body: hence it is lawful to take money in payment of that use, else no craftsman would be allowed to make profit by his art."' In this framework, lawyering is more than a series of mechanical steps, it is a spiritual undertaking, entwined and 1 ST. THOMAS AQUINAS, THE SUMMA THEOLOGICA II-II, Q. 71, Art. 4, at 1499 (Fathers of the English Dominican Province trans., 1947). Quod etsi scientia juris sit quoddam spirituale,t amen usus ejus fit opere corporali;e t ideo pro ejus recompensatione licet pecuniam accipere; alioquin nulli artifici liceret de arte sua lucrari. As J.V. Dolan points out, lawyers and their laws are meaningful when the law retains "a certain universality and remain[s] at some distance from the contingent singulars. It cannot become so completely configured to any individual action as to destroy its usefulness as a measure for the others." J. V. Dolan, Natural Law and Judicial Function, 16 LAVAL THEOLOGIQUE ET PHILOSOPHIQUE 96 (1960). LAWYERS AND ADVOCATES entangled in the mesh of man's intellect, reason, ends, goals, natural law imprints, and the image of God's creation. Spouting off legal maxims and principles while being slavishly attendant to legal promulgations without the broader perspective offered by Thomas is not the practice of law in the truest sense. The practice of law, and lawyering itself, is a sojourn into the just and unjust world of human existence.2 Good lawyers use the cerebral skills of an intelligent being, and are mindful of their spiritual and rational makeup. Certainly, the truly proficient lawyer develops superlative analytical talents, becomes a sterling orator, excels in the tactics and techniques of the litigator, and aggressively pursues the client's victory or position; though these competencies only partially encompass the Thomistic lawyer. More germane for Thomas is the permanent remembrance of the hierarchical structure of law, descending down from the Divine Exemplar, inherent and burned into our natural beings, aided by divine revelation, and dependent upon the order that emanates from nature and the positive laws enacted for the common good. Lawyers, like every human agent, are subject to this plan and need to submit their person and occupation to this teleological approach. The state cannot neglect the purposes and effects of the natural law since the natural law is given us "by the mercy and wisdom of the truly Supreme Legislator."3 Lawyers, in Thomas's eyes, are more than dockyard bullies who, if screaming loud enough, antagonizing opponents and representing clients zealously enough, are aggressive victors. In the contemporary courtroom, the search for truth is often replaced and unfortunately vanquished by those whose message rests on drama more than truth. Form over substance, fair over right are catch phrases that replace the true and the good in law and in lawyering. A client's rights or protections, just as a lawyer's vocation, are not singularly grounded in the promulgative reality, but in a law "that ought to be."4 The lawyer's "role" is, at best, an amoral functionary, and Thomas 2 For an interesting analysis of lawyering being more than mere practice, see generally Louis M. Brown & Thomas L. Shaffer, Toward a Jurisprudence for the Law Office, 17 Am.J . JURIS. 125 (1972). 3 Igor Grazin, Natural Law as a Form of Legal Studies, 37 AM. J. JURIS. 1, 16 (1992). 4 J.V. Dolan, Natural Law & Modern Jurisprudence, 16 LAVAL THEOLOGIQUE ET PHILOSOPHIQUE 44 (1990). 40 CATHOLIC LAWYER, No. 3 insists on much more. To the dismay of our present justice system, modern legal practice repeatedly witnesses lawyers who advocate claims knowing of their falsity; represent cases thoroughly vacant in merit; adopt litigation strategies that wear down opponents by exhausting their resources; and orally argue avant garde, even bizarre, legal arguments. And why not? For most contemporary legal professionals, lawyering is about gamesmanship, tactics, and victory for client and cause, with little care for the means utilized. Modern law schools speak of ethics in regulatory provisions or case law determinations, not in the Thomistic ideal of truth, teleology and justice. Justice is about what is right. Justice concerns itself solely with right reason, virtue, human and communal goods. Justice is not primarily about results tabulated in a win-loss column. Lawyers, for Thomas, are in the business of truth, not in a war of combatants or deceptive theatrical performances. Thomas's comparison of a soldier to a legal practitioner is instructive. A soldier in the midst of battle may be deceptive but similar tactics by a lawyer/advocate are rejected: As stated above... it is lawful for a soldier, or a general to lay ambushes in a just war, by prudently concealing what he has a mind to do, but not by means of fraudulent falsehoods, since we should keep faith even with a foe, as Tully says (De Offic. iii. 29). Hence it is lawful for an advocate, in defending his case, prudently to conceal whatever might hinder its happy issue, but it is unlawful for him to employ any kind of falsehood.5 This sketch of the lawyer/advocate is consistent with Thomas's overall view of human operations, inclinations and dispositions. Lawyers are no different from other actors on the world stage. This generality, however, does not cause Thomas to hesitate in laying out a blueprint for the legal profession. Eruditely, 5 AQUINAS, supra note 1, Q. 71, Art. 3, at 1499. Quod, sicut supra dictum est, militi vel duci exercitus licet in bello justo ex insidiis agere, ea quae facere debet prudentur occultando, non autem falsitatem fraudulenter faciendo, quia etiam hosti fidem servare oportet, sicut Tullius dicit (in De offic. lib. I, in tit. De bellicis offic. a med. et De fortitud. lib. III, circ. med.) Unde et advocato defendenti causam justam licet prudenter occultare ea quibus impediri posset processus ejus; non autem licet ei aliqua falsitate uti. LAWYERS AND ADVOCATES Thomas addresses the practice of law from various vantage- points. Exactly how does a lawyer morally and ethically advocate? How does truth serve as an ethical guidepost for the lawyer? Does the virtue of justice guide the lawyer? Do acts of injustice eventually transform the just lawyer into an unjust person? Is there a relationship between injustice, falsehood, immorality, and the condition of a lawyer's soul, or are these injustices merely manifestations of a profession and not the lawyer's own personhood? Is there a difference in professional and ethical parameters for those representing defendants or plaintiffs? How effective are lawyers in meting out justice by giving what is due to others and equalizing the imbalances that are inherent in civil harms and criminal wrongs? Not surprisingly, Thomas's job description for "lawyer" comprises more than professional obligations and proficiencies, it also includes a rich formula for the good life, since truth is annexed to justice.6 II. THE LAWYER AS ADVOCATE Delivering a legal argument, arguing for or against a particular law, precedent, or statute, urging the adoption of a specific principle in law or equity are the sum and substance of the advocate. Lawyers perform a myriad of functions, which throughout their professional careers will most assuredly include legal argument. It is the business of the advocate to vigorously represent a case or a client in their respective conditions and circumstances. Vigor of representation however, is not a license to act without moral parameters. "Zealous representation," a "vigorous defense," "unfailing loyalty to client and case," and being "a hired gun" for the defense or prosecution, are the standard "shop" descriptions for the lawyer/advocate. These depictions primarily portray a role of touting or towing the line or case argument within advocacy. Such bantering is an incomplete inquiry into the nature of advocacy since the advocate need delve into other underlying issues: 1) the meritorious basis for claim or charge and, 2) the justness and justice in the claim or charge. In other words, the advocate, before tuning up the vocal chords, assesses the morality, the virtue and the end result of the case to 6 See id. Q. 80, Art. 1, at 1527. 40 CATHOLIC LAWYER, No. 3 be advocated. Lawyers, in Thomas's moral setting, cringe at false factual averments and avoid any type of deliberate or selective ignorance of facts. Lawyers are in the business of justice, and Thomistic justice is not the province of victories and legal scorecards. Adopting a tone of condemnation, Thomas chides the lawyer who advocates the "unjust cause."7 "It is unlawful to co-operate in an evil deed, by counseling, helping, or in any way consenting, because to counsel or assist an action is, in a way, to do it ... "8 Imagine this view in the modern-day courtroom, where lawyers stand lockstep with criminals known to be guilty or with litigants whose cases are disingenuous at best. Shrouding oneself in a cloak of ignorance about client and case is unacceptable for those attuned to Thomas's jurisprudence. Thomas's legal advocate is aggressive about both his profession and those represented, as symbolized by his characterization of those advocating an unjust cause as "ungodly."9. The ungodly operate by means of chicanery, "fraudulent falsehoods,"10 and by engaging in a perversion of "his art for an evil end."11 George Friel interprets Thomas correctly: If in the course of a suit, the advocate finds that his case is unjust, he must give up the case, or induce his client to give way, or make some compromise without prejudice to the other side. In the course of a suit he may make use of all prudent and honest means, e.g., by not revealing all the truth, etc. On the other hand, he may never commit a crime to save his client. In criminal cases he may defend the criminal always, provided that he uses neither fraudulency nor lies.12 For those laboring in the muck of institutionalized legal practice, a policy of honesty and disclosure appears both naive and incomprehensible. For many, the legal system has institutionalized, and thereby legitimized, a selectively disclosed 7 Id. Q. 71, Art. 3, at 1498 (emphasis added). 8 Id. Quod illicitum est alicui cooperari ad malum faciendum, sive consulendo, sive adjuvando, sive qualitercumque consentiendo, quia consilians et coadjuvans quodammodo est faciens. 9 Id. Q. 71, Art. 3, at 1499. 10 Id. 11 Id. 12 GEORGE QUENTIN FRIEL, PUNISHMENT IN THE PHILOSOPHY OF SAINT THOMAS AQUINAS AND AMONG SOME PRIMITIVE PEOPLES 138 (1939). LAWYERS AND ADVOCATES type of legal advocacy. It is a business not interested in putting all the cards on the table, but instead hiding behind a lax occupational positivism. Cases and claims docketed in the prothonotary's office, rarely press the advocate's conscience. For the most part, today's attorneys are not mindful of the moral or metaphysical connotations of law, as is the justice system itself. The consequences of a legal culture and infrastructure dominated by the positivist's ideal is far-reaching and has invaded law school classrooms and courtrooms.13 A lawyer's model gutted of moral demands entices the bulk of advocates. Why should the advocate care when legal pundits creatively cook-up new and untested theories of injury and defense? Who can resist criminal defenses of the sort invented in the last three decades, e.g., television addiction, post-partum blues, junk food compulsions, astrological imbalances and sexual addiction? Advocacy without moral consequences is nothing more than a mindless series of movements and rationalizations. Thomas recoils at this narrow view of lawyering since a lawyer's function must be "seen in its full light, must be seen against the background of his teleological conception of man and the universe ... to the rule or domain of that higher law that leads all things to their final end or goal."14 An unjust law is really not a law in the truest sense, and therefore not obligatory. To advocate an unjust cause likewise is contrary to justice itself, to the very idea of law as an ordination. "[Llaw is binding in conscience only if it is law in the truest or most essential sense, and, it is binding in conscience if it is law in the essential sense because the essence or nature of law is intimately bound up with justice."5 For Thomas's part, the unjust advocate is an accomplice who sins so grievously that he or she is "bound to restitution of the loss unjustly incurred by the other party by reason of the assistance he has provided."' 6 Honesty toward and in the tribunal, a moral basis for case and cause, and a rejection of unmeritorious cases, in these times seems almost surreal. Gilson's remarks would fall on deaf ears in today's legal community. "But a lawyer lacking morality 13 Dolan, supra note 4, at 44. 14 Robert J. Kreyche, Virtue and Law in Aquinas: Some Modern Implications, 15 Sw. J. PHIL. 113 (1974). 15 Edward J. Damich, The Essence of Law According to Thomas Aquinas, 30 AM. J. JURIS. 79, 81 (1985). 16 AQUINAS, supra note 1, Q. 71, Art. 3, at 1499. 40 CATHOLIC LAWYER, No. 3 ought to be even more unthinkable, because no lawyer is allowed to plead an unjust cause. If he does so in error and good faith, he commits no fault. But if he knows that the cause he is defending is unjust, he gravely offends against justice."17 The positivist attorney has only the cause, good or bad, to hold onto. Lawyers need more than the artificiality and insubstantiality of promulgation and enactment.18 A just lawyer acts compatibly with reason, operates in conformity with the natural law, strives for the life of virtue and perpetually seeks the perfect good of all existence. These ingredients for the good and happy man are applicable to the good and happy lawyer.19 To the advocate, then, is the heady responsibility of advocating in conformity with this plan, advocating not as an automaton, but as a moral agent. Thomas labels this power unique to rational creatures alone since the "rational creature holds dominion over his acts, moving himself freely in order to perform his actions."20 Only then will the advocacy bring about what is due, what is right, assuring a "certain rectitude ... an equality between things and persons."21 Thomas is realistic enough to forgive or excuse the advocate who has been misled. As any lawyer discovers, a client's word is often an abridged or slanted storyline. The correctional population of America, numbering in the millions, is uniformly innocent, the inmates declare. While blind acceptance of a client's vision of truth is unwise, Thomas withholds judgment from those advocating a claim in good faith. This lack of knowledge, or the client's delivery of inaccurate knowledge, may be the foundation upon which the advocate develops a case theory. Thomas excuses this to some extent: "If, however, he defends an unjust cause unknowingly, thinking it just, he is to be 17 ETIENNE GILSON, THE CHRISTIAN PHILOSOPHY OF ST. THOMAS AoUINAS 320 (L.K. Shook trans., 1956). 18 For a persuasive discussion of how legal activity inevitably depends upon moral certitude, see generally Henry Mather, Natural Law and Right Answers, 38 AM. J. JURIS. 297 (1993). 19 See James V. Schall, S.J., The Natural Law Bibliography, 40 AM. J. JURIS. 157, 160 (1995). 20 THOMAS AQUINAS, SuMMA CONTRA GENTILES Book III, part II, Chap. 111, 1 (Vernon J. Bourke trans., 1975). 21 E. T. Gelinas, Right and Law in Thomas Aquinas, in MYTH AND PHILOSOPHY 131 (George F. McLean ed., 1971). LAWYERS AND ADVOCATES excused according to the measure in which ignorance is excusable."22 This toleration melts away when and if the advocate determines that the theory of his advocacy is fraudulent or false. Continued advocacy in the fraudulent cause is inexcusable and is assuredly a systematic attack against "commutative justice, legal justice, or at least against truth."23 Thomas recognizes that discovery of client/case falsehood exacts a series of dilemmas on the practitioner and cautions the advocate against the radical implications of immediate withdrawal from representation. He also reinforces the need for continued discretion in matters of privilege and confidentiality. The advocate need not help the opposition even though the basis of the advocacy has been altered by subsequent discovery of its injustice. Thomas shows keen sensitivity to the due process implications of withdrawn or substitute counsel: "[H]e ought not to throw up his brief in such a way as to help the other side, or so as to reveal the secrets of his client to the other party. But he can and must give up the case, or induce his client to give way, or make some compromise without prejudice to the opposing party."24 As an officer of the court, the advocate, as described in current parlance, should not advocate a case lacking in merit,25 nor that which is injurious to the profession as a whole. Thomas's benchmark for the just or unjust cause certainly assures both the quality and integrity of both case and advocate. III. THE LAWYER, TRUTH, AND FALSEHOOD Because justice is concerned with the right and "expression of right,"26 it is defined in terms of what is due, what is in balance and in equilibrium, and is an expression and reflection of the 22 AQUINAS, supra note 1, Q. 71, Art. 3, at 1499. Si autem ignoranter injustam causam defendit, putans esse justam, excusatur secundum modum quo ignorantiae xcusari potest. 23 Michael Harding, True Justice in Courts of Law, in AQUINAS, supra note 1, at 3356. 24 AQUINAS, supra note 1, Q. 71, Art. 3, at 1499. Non debet eam prodere, ut scilicet aliam partem juvet, vel secreta suae causae alteri parti revelet. Potest tamen et debet causam deserere, vel eum cujus causam agit, ad cedendum inducere, sive ad componendum sine adversariid amno. 25 See MODEL RULES OF PROF'L CONDUCT Rule 3.1 (1999). 26 AQUINAS, supra note 1, Q. 57, Art. 1, at 1432.