Whether It Is Lawful for an Advocate to Take a Fee for Pleading?
Objection 1: It would seem unlawful for an advocate to take a fee for
pleading. Works of mercy should not be done with a view to human
remuneration, according to Luke 14:12, "When thou makest a dinner or
a supper, call not thy friends . . . nor thy neighbors who are rich:
lest perhaps they also invite thee again, and a recompense be made to
thee." Now it is a work of mercy to plead another's cause, as stated
above (A. 1). Therefore it is not lawful for an advocate to take
payment in money for pleading.
Obj. 2: Further, spiritual things are not to be bartered with
temporal things. But pleading a person's cause seems to be a
spiritual good since it consists in using one's knowledge of law.
Therefore it is not lawful for an advocate to take a fee for pleading.
Obj. 3: Further, just as the person of the advocate concurs towards
the pronouncement of the verdict, so do the persons of the judge and
of the witness. Now, according to Augustine (Ep. cliii ad Macedon.),
"the judge should not sell a just sentence, nor the witness true
evidence." Therefore neither can an advocate sell a just pleading.
_On the contrary,_ Augustine says (Ep. cliii ad Macedon.) that "an
advocate may lawfully sell his pleading, and a lawyer his advice."
_I answer that,_ A man may justly receive payment for granting what
he is not bound to grant. Now it is evident that an advocate is not
always bound to consent to plead, or to give advice in other people's
causes. Wherefore, if he sell his pleading or advice, he does not act
against justice. The same applies to the physician who attends on a
sick person to heal him, and to all like persons; provided, however,
they take a moderate fee, with due consideration for persons, for the
matter in hand, for the labor entailed, and for the custom of the
country. If, however, they wickedly extort an immoderate fee, they
sin against justice. Hence Augustine says (Ep. cliii ad Macedon.)
that "it is customary to demand from them restitution of what they
have extorted by a wicked excess, but not what has been given to them
in accordance with a commendable custom."
Reply Obj. 1: Man is not bound to do gratuitously whatever he
can do from motives of mercy: else no man could lawfully sell
anything, since anything may be given from motives of mercy. But when
a man does give a thing out of mercy, he should seek, not a human, but
a Divine reward. In like manner an advocate, when he mercifully pleads
the cause of a poor man, should have in view not a human but a Divine
meed; and yet he is not always bound to give his services
gratuitously.
Reply Obj. 2: Though 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.
Reply Obj. 3: The judge and witnesses are common to either
party, since the judge is bound to pronounce a just verdict, and the
witness to give true evidence. Now justice and truth do not incline to
one side rather than to the other: and consequently judges receive out
of the public funds a fixed pay for their labor; and witnesses receive
their expenses (not as payment for giving evidence, but as a fee for
their labor) either from both parties or from the party by whom they
are adduced, because no man "serveth as a soldier at any time at his
own charge [*Vulg.: 'Who serveth as a soldier,']" (1 Cor. 9:7). On the
other hand an advocate defends one party only, and so he may lawfully
accept fee from the party he assists.
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