N. 8 – 2009 – Tradizione-Romana
Bronisław Sitek
University of Varmia and Masuria
Poland
Crimen
praevaricationis.
Remarks about barristers’ moral
qualifications on the background of the corruptible figure of the barrister in
the Ancient Rome
Table of
content: 1. Introduction. – 2. The beginnings
of the Bar in the Ancient Rome. – 3. The trial
capability. – 4. The subjective
range of crimen praevaricatio. – 5. The subjective range of crimen praevaricationis.
– 6. Prosecution
of crime. – 7. The way of penalizing praevaricatores. – 8. The barrister’s
loyalty from the perspective of European regulations. – 9. The
conclusions.
1.
– Introduction
The contemporary evaluation of the barristers’ morale is very
high. This professional group, beside the doctors and judges, is at the top of
the ranking of social trust in Poland and in the world[1].
This means that the society treats the barristers as the persons who are guided
by the moral principles in their professional career, chiefly by the honesty
and justice. The financial position of the members of this professional group
has its influence on a high moral evaluation, anyway commonly accepted by the
society.
However, it is not possible not to notice the media reports about
barristers taking part in various illegal transactions, even the international
ones. Therefore, such media reports disturb this so far quite ideal picture of
moral perfection of contemporary barristers.
These short observations about the social position and moral condition
of contemporary barristers create the question about the past of this
professional group. Perhaps at the turn of the twentieth and the twenty first
centuries the myth about perfect barrister was created, but in the meanwhile,
there was not like this in the past?
The
barrister profession was created within the Roman system of law in which the
most important part was the trial law, or rather the regulations saying how to
conduct trials and when it is possible to lay the claims. Within this range,
quite rich Roman literature exists. The basic papers referring to the Roman Bar
are for example the papers of such authors as: M. Kaser[2],
M. Grellet-Dumayeau[3]
or F. Wieacker[4]
2.
– The beginnings of the Bar in the Ancient
Rome
In
the oldest type of the Roman trial, in other words in legislative trial, the
parties had to turn up for the trial personally. All sort of advice could be
taken by the parties only from the priests who at that time had the monopoly to
legal knowledge. The priests knew the formulas of trials, or using the
contemporary terminology, they knew the legal regulations and trial formulas.
The essential changes happened in the formulary process, this means from the
middle of the third century BC, when the parties were allowed to have their
trial representatives appearing at the court, called public prosecutors (procurators) and cognitors ( cognitores). Moreover, in front of the
praetor the patronus[5]
could also appear, his task was not only to represent the party but to carry
out the trial procedures in front of the praetor (in iure).
At
the end of the republic the court speakers appeared, they were called the
orators. Their task was to make speeches for the defense and accusation during
the trials, chiefly in public cases[6].
The barristers, by contrast, not only made speeches in the court but they also
did judicial acts, particularly the trial letters for their clients[7].
In the cognition process the barristers became commonly used as the court
representative of the party. The typical example of using the barristers was
the St Paul’s process, when the prosecutors appeared in front of the
Roman prosecutor with their own barrister. That was he himself who carried the
whole trial[8].
The summary of plurality of forms how to represent the parties in front of the
Court is the thext by Psudo-Asconius. div. 11: Qui defendit alterum in iudicio, aut patronus dicitur, si oratores est;
aut advocatus, si aut ius suggerit aut praesentiam accommodat amico ( The
person who represents the other party during the trial is called the patron if
he is an orator, or the barrister if he provides the legal services or provides
help to his friend).
3.
– The trial capability
The
barristers, to have the ability to appear in the court, they had to have the
trial capability, in other words ius
accusandi. The basic condition to appear in the court was to posses the
trial capability which enabled to carry on the judicial activities. According
to Ulpian Postulare autem est desiderium suum
vel amici sui in iure apud eum, qui iurisdictioni praeest, exponere:
vel alterius desiderio contradicere
(The entitlement to lodge a claim means to bring your own action or your
friends’ action at the stage in
iure, in front of the clerk who has the judicial powers, or lodging a claim
of the opposite party[9].
By
virtue of the trial capability Ulpian sorted out the people into three groups.
Ulp. 6 ad ed. (D. 3.1.1.1): Eapropter tres
fecit ordines: nam quosdam in totum prohibuit postulare, quibusdam vel pro se
permisit, quibusdam et pro certis dumtaxat personis et pro se permisit.
(Because
of this, three groups of people are sorted out: those, who are completely
prohibited to lodge a claim, those, who can lodge a claim on behalf of their
own case, and those, who can lodge a claim only on behalf of some particular
persons and of their own case).
The
first of these groups constitute the people who are totally deprived of the
possibility to appear in court by virtue of their age, there were the persons
under 17 and those, who do not have the somatic integrity, particularly,
completely deaf persons. In this case the praetor could provide such a party
the barrister by right of office (Ait praetor:
"si non habebunt advocatum, ego dabo”)[10].
The second group of people constituted those, who could lodge the claims only
on behalf of their own. In this case the women and blind people are deprived of
the judicial capability. The third group of the people with limited judicial
capability, constituted those who ius
accusandi were deprived of such capability on the basis of a law,
plebiscite, senatu consultum, edict
or imperatorial constitution[11].
The
analysis of the sources of Roman law, carried out at an angle of indicating the
circle of people possessing the judicial capability, and consequently entitled
to lodge the claim to the praetor on behalf of his own name and on behalf of
the third persons, allows to indicate the qualities which the barrister should
distinguish. Therefore, the barrister should be at the proper age, that means
he should be 17 years old, he should be integral somatically, particularly have
good eyesight and hearing, have proper sex, it has to be male, have to be
unpunishable, and not to lead the style of life which can lead to infamy, for
example through performing in the theatre.
In
the light of enumerated qualities which the barrister should have, and taking
into consideration the specificity of this profession, the question arises
about the moral qualities of the barrister.
Ulp. L. 8 de omn. Trib. (D. 50.13.1.11): Advocatos
accipere debemus omnes omnino, qui causis agendis quoquo studio operantur: non
tamen qui pro tractatu, non adfuturi causis, accipere quid solent, advocatorum
numero erunt[12]
(The
barristers are considered to be all of those, who carry out the judicial case
very carefully, by contrast the barrisrers are not the persons who appear in
the court to replace the absent party).
This Ulpan’s
statement is associated with the issue of setting the amount of remuneration
for the barrister for the judicial proceedings carried out by him. As a
consequence Ulpian first outlined the subject in the interest of whom the judge
could adjudicate the remuneration, in other words who can be find a judge. The Ulpian’s text is therefore a kind of prejudicial solution in
relation to the main case[13].
The most important feature, which the
barrister should have, is the honesty in carrying out the case. Because of this
Ulpian used the term studium, which
means taking the procedures with a great zeal and the highest carefulness.
Undoubtedly, the barrister profession was the one of social confidence already
in the Ancient Rome.
4.
– The subjective range of crimen praevaricatio
The
duty of the barrister was reliable conducting his client’s case , hence,
not without the meaning was possessing by the barrister proper moral
qualifications. Quintilian wrote about moral aspects of the barrister
profession in the Ancient Rome.
Quint.
Inst. 12,1,24: An ei qui ad defendendas causas advocatur non est opus fide
quam neque cupiditas corrumpat nec gratia avertat nec metus frangat: sed
proditorem transfugam praevaricatorem donabimus oratoris illo sacro nomine? Quod
si mediocribus etiam patronis convenit haec quae vulgo dicitur bonitas, cur non
orator ille, qui nondum fuit sed potest esse, tam sit moribus quam dicendi
virtute perfectus?
(Whether
somebody, who is to be conduct the case in court, should not be honest ,
consequently removing the temptation of greed , the influence of disreputable
people and the fear , which paralyses his activities? Whether we give this holy
name of orators to the betrayer, deserter, or the person making secret
agreements (praevaricatio)? Whether , if we acknowledge the average barrister
to be honest, although he is not an orator , and by no means he was not him,
but he can become as such, should not he be without moral faultless and have
perfect knowledge of oratorical art?)
The
excerpt consists of several rhetorical questions, which fully represent the
state of things existed then and the social expectations regarding the
barristers or the judicial orators. The main quality, which the barrister
should have is the loyalty in relation to his client ( opus fide). It was stated that to the opposite deeds are reckoned:
greed, submission of the barrister because of fear or taking the actions in the
interest of the opposite party. The expression used in the text gratia avertat is the synonym of the
term praevaricatio, that means making
a secret agreement between the barrister and the opponent of his client.
Extremely
important is the further part of the Quintilian text, where there is some
information about taking the judicial procedures by orators, who were not the
outstanding experts of law. What is more, the average orator – mediocris – not always was a good
speechmaker, but his professional and social position was established on the
moral perfection (mos) and reliable
knowledge of the oratorical art. The contemporary public opinion poll verify
the antic opinion about the necessity of barristers to posses not only the
professional knowledge, but also proper moral qualifications[14].
The
main offence against the barrister’s moral and professional requirements
was his secret agreement – collusion
– with the opposite party of the litigation. Such a deed reconciles
the fundamental rule of professional ethics of barristers, which is a loyalty.
Such a deed was denominated by a Latin term praevaricatio,
and the barrister was defined as praevaricator.
However, it is worth to state that the same term praevaricatio could also mean the agreement of delators in fiscal
matters[15].
In the Romanistic literature there is merely
occasionally mentioned about crimen
praevaricationis. T. Mommsen, outlined the most important issues associated
with this kind of offence and he reckoned them to the group of offences
adjudicated by the emperor’s clerks within the cognitive trial[16].
S. Petrini in turn took out this offence in a spacious annotation, taking the
dispute with previous views on the qualification of this deed and its
prospective regulation in lex Iulia
iudiciorum publicorum[17].
Ulp.6 ad
ed. (D.47.15.1pr.): Praevaricator
est quasi varicator, qui diversam partem adiuvat prodita causa sua. quod nomen
Labeo a varia certatione tractum ait: nam qui praevaricatur, ex utraque parte constitit, quin immo ex altera.
(Therefore
praevaricator is like a criminal, who helps the opposite party and reveals the
case ( betrays) which he conducts. According to Labeo, this term comes from
varia certatione, because someone who settles with the opposite party, in fact
settles with both parties, and even more with the opposite one).
Ulpian in the excerpt cited
referred to the statement of Labeo, the lawyer who lived about 300 years ago,
and who explained the etymology of the word praevaricator
to be derived from two words, mainly from varia
certatione, which can be literally translated as „ various
fight”. Praevaricator therefore
is a person who fights on both parties of the battle and he starts to support
the opposite party even more - quin immo ex altera. The deed itself was described by the term praevaricatio.
The
common understanding of the term praevaricator can be found in the other
excerpt of Ulpian, coming from the work devoted adulterium.
Ulp. 1 de
adult ( D.50.16.212): " eos
appellamus, qui causam adversariis suis donant et ex parte actoris in partem
rei concedunt: a varicando enim praevaricatores
dicti sunt.
(Praevaricatores
are those who pass the message from the case they conduct to the opposite party
and through their activities make that the plaintiff becomes a defendant: hence
the praevaricatores are called the people who stand astride – varicare).
In the text above Ulpian indicates the lack of
decisiveness of corruptible barrister. The case cannot be solved in any way,
because the barrister stands between the business of both parties, and he
really stands astride, so he cannot tip the scales of victory in favour of any
of the parties.
5.
– The subjective range of crimen praevaricationis
The
term praevaricatio appearing in the
Digests and its semantic variations, not always means the secret collusion of
the barrister with the opposite party. This term can also mean the agreement of
the trial parties themselves the aim of which is to avoid the punishment by the
defendant[18].
Ulp. 71 ad ed. (D.43.29.3.13):
Si tamen, posteaquam hoc interdicto actum est, alius hoc interdicto agere
desideret, palam erit postea alii non facile dandum, nisi si de perfidia
prioris potuerit aliquid dici. itaque causa cognita amplius quam semel
interdictum hoc erit movendum. nam nec in publicis iudiciis permittitur amplius
agi quam semel actum est quam si praevaricationis
fuerit damnatus prior accusator.
(However, if after giving this interdict ,
somebody else assert a claim to give him the same interdict, it is obvious that
this is not possible, except that somebody certifies the fraudulent act of the
first prosecutor. In this event, after hearing the case against the first
prosecutor , such interdict can be granted again. In the public accusations it
is admissible to assert a claim more than once, if the previous prosecutor was
convicted for making the secret agreement with the opposite party in court).
The
excerpt by Ulpians comes from the title De
homine libero exhibendo. In this excerpt there is stated about
determination of granting the interdict de
homine libero exhibendo. It is possible to apply for the interdict only
once. However, if it appears that this person does not have the judicial
capacity, the other person could apply for granting this interdict. Such a
solution was accepted from already existing system of granting claims in iudicia publica. In this case the
persons who did not have the judicial capacity were praevaricatores. There were not the barristers, but public prosecutors,
who were sentenced in other trial for making agreements with the opposite
party, for example to avoid the punishment[19].
Crimen
praevaricationis committed the person, who had the duty to
assert a public accusation, but he did not do this as a result of the collusion
with a suspect.
Marcian . l.s. ad senat. (D. 48.16.1.6): Consult. Turpill.: Praevaricatorem eum esse ostendimus,
qui colludit cum reo et translaticie munere accusandi defungitur, eo quod
proprias quidem probationes dissimularet, falsas vero rei excusationes
admitteret.
(Praevaricator is then a person, who make the secret agreement with the accused
person and therefore does not accomplish the duty of asserting a claim because
he keeps secret of his own evidence, and he permits clearing from blame).
In the excerpt cited Marcian
indicates the prerequisites of crimen
praevaricationis, which commits the person who has the duty to asset the
public accusation. These prerequisites are making agreements associated with
giving up the intention of lodging the accusation and keeping secret the
evidence of an offence or permitting to vindicate. According to Marcian the
term praevaricatio is the equivalent
of the term collusio, used in civil
law[20].
The term praevaricatio was also used to denote the tax payers’
agreement, so that to avoid the tax payment in the interest of the fisc.
Call. 1 de iure fisci (D.49.14.1pr.): Variae causae sunt, ex quibus nuntiatio ad
fiscum fieri solet. … vel praevaricatione
fiscum victum esse:
(The reasons are different, because of
which the Inland Revenue should be informed: … or if the secret agreement
was made, so that not to pay the payment due to the Inland Revenue).
In case of the agreement
between parties, which aim would be to avoid the payment of the tax, the person
who knows about it should inform the Inland Revenue about this fact - ex
quibus nuntiatio ad fiscum fieri solet[21].
However,
the most known form of committing crimen praevaricationis is the
agreement of the barrister with the opposite party. That deed was the offence,
what was distinctively stated in the Ulpian’s text beneath .
Ulp. 6 ad ed. (D. 3.2.4.4): Calumniator
ita demum notatur, si fuerit calumniae causa damnatus: neque enim sufficit
calumniatum: item praevaricator.
praevaricator autem est quasi
varicator, qui diversam partem adiuvat prodita causa sua: quod nomen Labeo a
varia certatione tractum ait, nam qui praevaricatur,
ex utraque parte constitit, quin immo ex adverse.
(In
the end the false prosecutor becomes infamed, if he is sentenced because of the
false denunciation, as it is not enough to asset the false accusation. The
similar rules are used regarding to the corruptible barrister. Praevaricator is by contrast like the offender, who helps
the opposite party and betrays the case which he conducts. According to Labeon,
the term comes from the words varia certatione, because somebody who makes agreements with
the other party, in fact , makes this agreement with both parties, and even
more with the opposite party).
The text above does not make
the interpretation difficulties. However, it is worth to point out the fact
that the term praevaricatio refers
exclusively to the corruptible barrister, that means such a person who is
faithless to his constitutor and takes the secret cooperation with the opposite
party. Such argument was based on the expression taken from the above excerpt: praevaricator autem est quasi varicator, qui
diversam partem adiuvat prodita causa sua. Here this is clearly said about
taking cooperation with the opposite party and giving the secret information
concerning the represented party.
The aim of Ulpian was to
indicate the similarity appearing between the false accusation (delatio), and a praevaricatio, which is the secret agreement of the barrister with
the opposite party in the court. However, this similarity does not refer to the
convergence of the dogmatic construction of both the offences, but merely it
touches the fact of punishing by infamy the offenders of both this type
offences[22].
6.
– Prosecution
of crime
It was already showed that
the barrister’s agreement with the opposite party in relation to the
represented one, was treated as an offence in Roman law. Therefore, it is
necessary to establish the rules of prosecution of these crimes.
Ulp.
6 ad ed. (D.47.15.1.1): Is autem praevaricator proprie dicitur, qui publico iudicio accusaverit:
ceterum advocatus non proprie praevaricator
dicitur. quid ergo de eo fiet? sive privato iudicio sive publico praevaricatus sit, hoc est prodiderit
causam, hic extra ordinem solet puniri.
(Is it therefore reasonable to call the
corruptible barrister the person who assets the public accusation - iudicium
publicum: the Rest of the barristers Carnot be named corruptible? How to solve this case? As a corruptible barrister it is recognized
both this one who assets with private and with public accusation, which means
this person who makes the secret agreement with the opposite party – prodere.
He should be punished at the trial extra ordinem.)
The text by Ulpian solves two quite
fundamental issues concerning the rules of praevaricatores
punishment. The first of them allows to establish if the barrister committed crimen praevaricationis when he appeared
in iuducium publicum or also when he
appeared in iudicium privartum. The
commonly known division of offences into delicta
and crimina corresponded with the
division of the trial into iudicia
private and iudicia publican[23]. In the Polish criminal law there is
said about the division of mode of prosecution of crimes, the private
accusatorial procedure and the public accusatorial procedure. Returning to the
Roman law, this assignment of particular types of offences to the procedure
within the frames iudicia privata or publica not always was distinctive and
it was changing together with political and social needs. And that is, for
example adluterium, in other words
spouse breach was at first prosecuted in the mode of proceeding from public
accusation, and then from the August times in the mode of public trial[24].
Just that lack of clarity regarding the assignment of particular types of
offences to the proper type of the trial caused the appearing of doubt
concerning the fact whether the barrister can be accused of crimen praevaricationis, if he committed
that deed appearing in iudicia publica
or in iudicia privata as well? The
Ulpian’s answer is quite univocal , namely the barrister committed the crimen praevaricationis, independently
of the fact if he made the agreement with the opposite party at the private or
public trial.
The other issue, solved in the
Ulpian’s excerpt being discussed, refers to the mode of prosecuting the
corruptible barrister. In this case, it is difficult to give the argument
either it was the issue under discussion , or simply Ulpian added at the end of
legal adjustment also the information concerning the mode of prosecuting the
disloyal barrister. According to him the disloyal barrister’s case should
be solved not in the mode of iudicium
publicum or private, but in extra ordinem, in other words in the
cognitive trial – hic extra ordinem
solet puniri.
The support of the thesis above is in the
following excerpt by Ulpian.
Ulp.
9 de off. procons. (D.47.15.2): Sciendum, quod hodie is, qui praevaricati sunt, poena iniungitur
extraordinaria.
(As is known, and what also today has its
application, that those barristers who were sentenced for disloyal behaving
regarding his client, are bounded with penalties inflicted in trials extra
ordinem).
Saying good hodie is means that
prosecuting crimen praevaricationis
within the frames of cognitive trial was used since a long time. Whereas Ulpian
merely reminded that rule.
The other mode of prosecuting crimen praevaricationis appeared in a
case of committing that offence by one of the parties of the procedure.
Macer
1 publ. iudic. (D.47.15.3 pr.): Praevaricationis iudicium aliud
publicum, aliud moribus inductum est.
(The
trial in virtue of praevaricatio can
be conducted from public accusation and the other time it can be conducted on
the basis of the accepted custom).
In the excerpt by Macer, mentioned above
there is a clear distinction of the collusion offence committed by one of the
parties, from that, which the corruptible barrister committed. In both the
cases the different modes of proceedings were applied. In the first case crimen praevaricationis was prosecuted
within the frames iudicium publicum,
when in the other case the trial was conducted according to the custom assumed
( mos). The further explanation of applying another mode of prosecuting the
offence of collusion committed by the parties at the trial we can find in the
next part of the same excerpt by Macer.
Macer
1 publ. iudic. (D. 47.15.3.1): Nam si reus accusatori publico iudicio ideo
praescribat, quod dicat se eodem crimine ab alio accusatum et absolutum,
cavetur lege Iulia publicorum, ut non prius accusetur, quam de prioris
accusatoris praevaricatione
constiterit et pronuntiatum fuerit. huius ergo praevaricationis pronuntiatio publici iudicii intellegitur.
(If the defendant in the public trial submits
the declaration to the judge that he was already accused in the same virtue by
another prosecutor and according to the act’s decisions Iulia
publicorum he assures that he cannot be accused until the first prosecutor
is sentenced as a praevaricator, and the judgment in this case is
pronounced. This kind of the decision is proceeded on the basis of the public
accusation - iudicium publicum).
The case
quoted refers to making the second charge in the same virtue. According to the
decisions lex Iulia de iudicium publicum , however, the second charge
could not be proceeded until the first prosecutor was adjudged as a praevaricator,
in other words as the disloyal prosecutor, on the basis of the court sentence.
Such a decision is also in accordance with the rule bis de eadem
re agere non licet. In this case crimen praevaricationis was proceeded within the frames of iudicium publicum[25].
The above solution is acknowledged also
in another excerpt by Macer.
Macer 1 publ. iudic. (D.47.15.3.2): Quod
si advocato praevaricationis
crimen intendatur, publicum iudicium non est: nec interest, publico an privato
iudicio praevaricatus dicatur.
(If the barrister committed praevaricatio, the case is not proceeded from public
accusation: and it is not important, whether the offence was committed during the
private or public trial).
In the excerpt above there is the final
acknowledge of the fact that committing ctimen
praevaricationis by the barrister caused the criminal responsibility, but
the case was proceeded beyond the traditional division of the crime prosecution
system from private and public accusation.
7.
– The
way of penalizing praevaricatores
At the very beginning of this item it
should be decided whether the barrister condemned for crimen praevaricationis fell into infamy. The doubt of this issue
gets out of the recorded praetor’s edict , the excerpt of which gave the
Roman jurist Julianus.
Jul. 1 ad ed.,
(D. 3.2.1): Praetoris verba dicunt: Infamia notatur … qui in iudicio
publico calumniae praevaricationisve
causa quid fecisse iudicatus erit
(Praetor
decided that infamy hurts those, who are condemned on the basis of public
accusation (iudicium publicum) because of the false charge or the agreement
with the opposite party).
The praetor’s edict Qui nisi pro certis personae ne postulant [26]
contained the list of persons, who could not appear in a court with
accusations or proceed any judicial acts. The similar list of infamised persons
exists in Tabula Heracleensis11.110, the municipal act from the 1st century BC[27].
The expression existed in the Julian’s text does not allow to state
univocally whether the infamy referred to disloyal barristers or perhaps it
referred only to the public prosecutors condemned on the basis of crimen praevaricationis.
Macer 2 publ. iudic. (D.47.15.4): Si
is, de cuius calumnia agi prohibetur, praevaricator
in causa iudicii publici pronuntiatus sit, infamis erit.
(The person who is forbidden
to take legal steps with accusation because he was sentenced for asserting
disloyal charge (delatio), and who was sentenced during the trial
from public accusation as a praevaricator, is regarded as a infamised person).
The text by Macer distinctively indicates
that according to the praetor edict the infamised prosecutors were only those
who were sentenced by virtue of crimen
praevaricatio during the trial from public accusation[28].
In this excerpt it is not said about corruptible barristers. Therefore, were
not they sentenced for infamy? Such a conclusion can be taken from the text by
Macer. Anyway, such a solution was also assumed in the constitution from the
year 242 issued by the emperor Gordian[29].
The general principle regarding the way
of penalizing praevaricatores gave
Paulus, the lawyer who lived at the turn of the III and IV centuries AD.
Paul. l.s. de iud. publ. (D.47.15.6.): Ab imperatore nostro et patre eius
rescriptum est, ut in criminibus, quae extra ordinem obiciuntur, praevaricatores eadem poena
adficiantur, qua tenerentur, si ipsi in legem commississent ^ commisissent^,
qua reus per praevaricationem
absolutus est.
(It was decided by our emperor and his son,
that, in case of the offences, prosecuting within the frames of the trial extra
ordinem, praevaricatores they were sentenced to the same
punishment, from which they protected somebody, and they dishonored the law and
whereby the accused person was released).
Septimius Sewer and his son Caracalla,
when they were acting emperors duties together for a few months. The text of
the rescript was distinctively modified by the book – makers. There is
the lack of the text which logically combines the final part The text above
includes the excerpt of rescript from the year 211 issued by with the verb obiciuntur and which starts with the
subject praevaricatores. However, it
can be concluded that this rescript was issued to decide a dispute about the
way of penalization the barristers, who committed crimen praevaricationis. In the first part of the rescript there
was given the principle concerning the way of penalization on the trial extra ordine, which was consequently
used also in case of the corruptible barrister. According to that principle the
corruptible barrister should be punished in the same way as he allowed the
defendant to avoid. That could be the capital punishment as well.
The other kind of punishment for the
corruptible barrister was depriving the barrister the right to appear in court
– ius accusandi.
Ulp. l. 10 de off. procon. (D. 48.19.9 pr.): Moris est advocationibus quoque praesides
interdicere. Et nonnumquam in
perpetuum interdicunt, nonnumquam ad tempus vel annis metiuntur vel etiam
tempore quo provinciam regunt.
(The custom is, that the governor of the province can deprive the
barristers the right to appear in court. Such right can be taken forever,
occasionally, only for some time, or for several years or for the period to the
end of the governor’s rule).
In the text above there is not mentioned about the
corruptible barrister. The basic subject of this excerpt is the possibility of
depriving or suspending the barristers’ entitlement to appear in court.
Such an entitlement had the province governors. Depriving of the entitlement to
appear in court had the everlasting character – in perpetuum. Suspending of the barristers’ entitlement could
be decided for some time – ad
tempus, in other words, for a period shorter than one year. Such an
interpretation of the term ad tempus
gets out of the fact, that the next period of suspending the barristers’
entitlement was called annis metiunter,
which could be translated as “delivering justice for years”. In
this case it refers consequently to the period longer than one year. The last
possibility to suspend the barristers’ entitlement was for the period to
the end of holding the office by the province governor.
The similar province governor entitlements were given in
the following excerpt by Ulpian.
Ulp. l. 10 de off. procon. (D. 48.19.9.4): Nonnumquam
non advocationibus cui interdicitur, sed foro. Plus est autem foro quam
advocationibus interdicere, si quidem huic omnino forensibus negotiis
accommodare se non permittatur. Solet autem ita vel iuris studiosis interdici vel advocatis vel tabellionibus
sive pragmaticis.
(Sometimes the
province governor can prohibit not only to appear in court , but also to make
the court proceedings. The prohibition to make the court proceedings is much
more severe than the prohibition to appear in court. The court proceedings
cannot be made without the permission. Such the prohibition can be made in
relation to the students of law, barristers, notaries public and legal
councilors).
In the excerpt analyzed, there is one more kind of
punishment, which the province governor had at his disposal in relation to the
barrister, namely, he could prohibit to conduct the legal proceedings and
trials associated with the court proceedings. The expression omnino forensibus negotiis should be
understood as managing the lawyer’s office at the court, where the
barristers conduct the legal proceedings such as making the agreements. Such
kind of punishment could concern not only the barristers, but also the students
of law, notaries public or simple councilors. The punishment was much more
severe by virtue of depriving the possibilities to earn money.
The two excerpts cited above do not give the univocal
answer to the question if depriving or suspending the ius accusandi could be used in relation to the barrister who was
condemned for committing crimen
praevaricationis? However, after the analysis of this document with
coinciding of the previous text ( D.47.15.6.), directly referring to the issue
of the corruptible barrister, it could be concluded that depriving or
suspending ius accusandi was applied
in case of sentencing the barrister in virtue of crimen praevaricationes.
8.
– The
barrister’s loyalty from the perspective of European regulations
The proper morale of the barrister was regulated in
numerous European legal acts in respective member states. By virtue of a great
number of them it is impossible to embrace them all by one legal analysis.
Hence, I will limit to indicate the moral duties of barristers, which get out
of European Ethical Code of Barristers and of Polish and Italian regulations.
In the Council of Bars and Law Societies of Europe[30] in item 2.2 it is said about the faith and about the
moral integrity of barristers. The faith and moral integrity are built on the
honesty, uprightness, straight-forwardness and frankness. These virtues
traditionally are the basis of the professional barrister’s duties. In
item 2.3 it was stated about the duty to keep secret. This duty was also
introduced to Polish legal system, which will be described beneath. Item 3.2
refers to the barrister’s attitude towards his client. This recording
means a distinctive duty of barrister’s loyal behavior towards his
client.
In the Ethical Code of Barristers in Italy in the Article
no 6 the barrister’s duty of loyalty was distinctly recorded. And in the
Article no 7 it is said about the barrister’s faith as about a
professional duty. This recording formulates the negative sides of the subject,
saying that the barrister who takes the conflicting activities towards his
client, bears the disciplinary responsibility. The clerks are in duty to keep
the public service secret[31], in virtue of the Article no 9.
Contemporarily, the barrister’s profession in Poland
is regulated in virtue of the Act from 26th May 1982, law about the Bar[32] and the Barristers’ Ethical Code. In the
Article no 5 of the Bars Act there is a content of the army unit, which the
barristers swear before they start the professional proceedings. At the end of
the oath we can read that the barristers will do their duties eagerly, faithfully and according to the legal rules,
they will keep their professional secret, and behave with dignity, honesty,
rightfulness and social justice. Whereas in the Barristers’ Ethical
Code there are numerous references to the ethical values. The barrister’s
loyalty duty towards his client was not formulated distinctly, but such a duty
results from particular normative regulations. In & 22 item 1 it was
decided, that the barrister must not take the proceedings or give legal help,
if he earlier gave such a help to the opposite party of the same case or the
case associated with it, or if he took part in the case having the public
function. Whereas in & 51 it is decided that the client’s attitude towards
the barrister should be based on the faith, hence the barrister is even obliged
to cancel the letter of attorney, if it is clear from all the circumstances
that the client has lost the faith to him. The most important recording is in
& 19, where in item no 1 it was decided that the barrister is obliged to
keep secret and to prevent against the undesirable reveal or against the use,
everything what he got to know in connection with performing professional
duties, and the materials in barristers’ documents are kept secret. The
duty to keep secret is without limits, so also after finishing to do the job
the barrister is obliged to keep secret.
Not keeping the professional secret and the loyalty
concerning the client can cause the disciplinary responsibility of the
barrister and even his dismissing from the Bar.
9.
– The
conclusions
The barrister’s job was
created in an Ancient Rome, over the period of the late republic when teaching
the law became public. From the very beginning this job enjoyed trust in the
society. One of the basic duties of barristers was to keep the loyalty in
relation to their clients. The cooperation with the opposite party in virtue of
the secret agreement (collusion),
chiefly revealing the data to the opposite party (proditio), was treated as the offence described as crimen praevaricationis. This term could
also mean the secret agreement between the parties of the proceeding, to avoid
the punishment by the defendant. However, in this case the different type of
penalizing was used.
The judge who committed crimen praevaricationis, was judged
within the frames of the cognitive trial, independently of the fact if the deed
was committed within the private proceeding (iudicium privatum) or the public one ( iudicium publicum). The range of penalties given to the praevaricatores was quite wide. The rule
was that the barrister condemned in virtue of crimen praevaricatio could be sentenced on the same penalty which
he let avoid the opposite party. The other type of penalty was depriving or suspending
the barrister the ius accusandi, in
other words depriving the right of appearing in court. Subsequently, there was
the penalty of depriving the barrister the right to keep the barrister’s
office at the court. Exactly that penalty seemed to be the most severe because
it deprived him the main source of making money.
The duty of the
barrister’s loyal behavior in relation to his client is compulsory also
nowadays. This duty, although was not registered expressis verbis in the Act about the Bar and in the
Barrister’s Ethical Code, however, it univocally gets out of these
normative acts.
To sum up this paper it can
be said that the social expectations in relation to the barristers have not
changed for the centuries. Above all the basic characteristics of the
barrister’s profession is the honesty and loyalty in relation to the
client. The society does not accept the corruptible figure of the barrister.