N. 8 – 2009 – Tradizione-Romana


Bronisław Sitek

University of Varmia and Masuria



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. 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. 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. 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. 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. 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. 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. 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. 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. 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.




[1] Data on the basis of the report from 2008, prepared by BIIP on the subject about the social trust in the consciousness of Polish. In: http://www.inzynierbudownictwa.pl/biznes.raporty.artykulzawody_zaufania_publicznego_w swiadomości_polakow.1061. [3VIII 2009].


[2] M. Kaser, Das Römische Zivilprozessrecht, München 1996, 219-563.


[3] M. Grellet-Dumayeau, Le barreau romain: recherches et études sur le barreau de Rome, depuis son origine jusqu’à Justinien, et particulièrement au temps de Cicéron, Roma 1972.


[4] F. Wieacker, Cicero als Advokat: Vortrag gehalten vor der Berliner Juristischen Gesellschaft am 29. April 1965, Berlin 1965.


[5] Patronus was a person supporting the parties during the trial. There is a paragraph about this institution at Livius 43.2.3: … patronosque, quos uellent, sumendi potestatem faceret (…and patrons who they wanted they were allowed to arrange). See. A.v. Premerstein, Die fünf neugefundenen Edikte des Augustus aus Kyrene, ZSS 48(28), 486. 


[6] The Court speakers mostly appeared In the defense of their friends or commonweal, e.g. Cyceron. They did their tasks without payment. Their knowledge about the law was rather general. Whereas the barristers were mainly experts of the substantive and procedural law. About the components of education of the orators see. J.P. Murphy, S.J. Chicago, Tacitus on the Education of the Orator, ANRW II 33.3, Berlin 1991, 2284-2297; K.Z. Méhész, Advocatus Romanus, Buenos Aires 1971, 56 f.


[7] Barristers were entered into a list (matricula), which existed AT each of the courts. They also created the associations (collegia) and had a lot of priviledges, among others they were released from the court fees and performing the public duties in municipalities and provinces. C.Th. 2.10.1 (319). M. Kaser, Das Römische Zivilprozessrecht, 564. W. Schubert, Die rechtliche Sonderstellung der Dekurionen (Kurialen) in der Kaisergesetzgebung des 4-6 Jahrhunderts, ZSS 86(1969), 287-333.


[8] See. B. Sitek, Saint Pauls’ Trial. The monograph to studies the Roman crime trial on the border, [w:] Multi cultural charakter of the border of Polesie. People – ideas – law , edited by. A. Lityński and P. Fiedorczyk, Materials from the Congress of Historical – Legal Professorships, Augustów 15-18 September, 2002, Białystok 2003, 163-177.


[9] Ulp. 6 ad ed. ( D.


[10] Ulp. 6 ad Ed. ( D.


[11] Ulp. 6 ad ed. (D. Ait praetor: "qui lege, plebis scito, senatus consulto, edicto, decreto principum nisi pro certis personis postulare prohibentur: hi pro alio, quam pro quo licebit, in iure apud me ne postulent." Hoc edicto continentur etiam alii omnes, qui edicto praetoris ut infames notantur, qui omnes nisi pro se et certis personis ne postulent. (Praetor decided Those, who were deprived to appear In Court on the basis of law, plebiscyt senatus consultum, edict or imperatorial constitution cannot appear in court in fron of me (in iure), except  that they are allowed to represent some persons  . This edict also refers to others mentioned in edict  as infamed persons and Carnot appear in Court neither on behalf of their own cases nor on behalf of the other persons cases). The infamed persons mentioned In the preator Edict, are also mentioned by Julian 1 ad Ed. (D.3.2.1). See B. Sitek, Infamy in Roman Emperors Jurisdiction, Olsztyn 2003, 30.


[12] Ulp.L.8 de omn. Trib. (D.


[13] Ulp. L. 8 de omn. Trib. (D. In honorariis advocatorum ita versari iudex debet, ut pro modo litis proque advocati facundia et fori consuetudine et iudicii, in quo erat acturus, aestimationem adhibeat, dummodo licitum honorarium quantitas non egrediatur: ita enim rescripto imperatoris nostri et patris eius continetur. Verba rescripti ita se habent: "Si Iulius Maternus, quem patronum causae tuae esse voluisti, fidem susceptam exhibere paratus est, eam dumtaxat pecuniam, quae modum legitimum egressa est, repetere debes". (To establish the amount of barrister’s remuneration , the judge should  take into consideration the level of barrister’s engagement at the case, the general customs set up at the given court, and then the judge, the office of whom the barrister works, should give his opinion, however the remuneration cannot be too high. As it was determined in the rescript  of the emperor and his father. In the rescript it was stated: If Iulis Maternus, who was a patron of your case and he was evaluated that he accomplished his tasks well, he can demand the remuneration, but not more than money which he can receive according  to the law.)


[14] The moral requirements regarding the barristers distinctively result from the Barrister’s Ethical Code, where in art. & 1 p.3 is stated that: The duty of the barrister is to comply with the ethical norms and to protect the barrister’s profession dignity. The text of the Code see: http://www.monitorprawniczy.pl/index.php?mod=m_artykuly&cid=53&id=219 [9IX2009]. About the connection of the barrister’s profession with the necessity of respecting moral norms it is said also in the preamble to the Ethical Code of European Lawyers, see: www.oirp.wroclaw.pl [9IX2009].


[15] Pap. 13 resp. (D.44,3,10,pr.).


[16] T. Mommsen, Römisches Strafrecht, Leipzig 1899, 501-503.


[17] S. Pietrini, Sull’iniziativa del processo criminale romano (IV-V Seculo), Milano 1996, 28 case 40.

[18] Such an agreement was forbidden already in the Act XII Tab.III. B. Santalucia writes about this, Diritto e processo penale nell’antica Roma, issue 2, Milan 1998, 181, annotation 254.


[19] See: M. Marrone, ‘Sulle formule dei giudizi di liberta’, Sodalitas VI, Napoli 1984, 2947-2956; R. Martini, Il problema della causae cognitio pretoria, Milano 1960; G. Gandolfi, Contributo allo studio del processo interditale romano, Milan 1995, 30.


[20] See: T. Mayer Maly, Collusio im Zivilprozess, ZSS 71 ( 1954).


[21] See: R. Bonini, I “libri de cognitionibus” di Callistrato. Ricerche sull’elaborazione giurisprudenziale della “cognitio extra ordinem”, Milan 1964, 22.


[22] See: H. Harries, Law and Crime in the Roman World, Cambridge 2007, 21.


[23] Macer l. Primo de pub. Iud. (D. 48,1.1): Non omnia iudicia, in quibus crimen vertitur, et publica sunt, sed ea tantum, quae ex legibus iudiciorum publicorum veniunt, ut Iulia maiestatis, Iulia de adulteriis, Cornelia de sicariis et veneficis, Pompeia parricidii, Iulia peculatus, Cornelia de testamentis, Iulia de vi privata, Iulia de vi publica, Iulia ambitus, Iulia repetundarum, Iulia de annona. (Not all the types of trias, in wchich the offences are  sentenced, are the public trials, but only such ones which are denoted in this way on the basis of the act, for example  Iulia maiestais, Iulia de adulteriis, Cornelia de sicariis et veneficis, Pompeia parricidii, Iulia peculatus, Cornelia de testamentis, Iulia de vi privata, Iulia de vi publica, Iulia ambitus, Iulia repetundarum, Iulia de annona). This excerpt by Macer shows that only on the basis of particular acts some rimina could be sentenced within the frames of  iudicium publicum.

[24] See: S. Puliatti, Incesti Crimina. Regime giuridico da Augusto a Giustiniano, Milano 2001, 11 and following.


[25] F. Botta, Legittimazione, interesse ed incapacità all’accusa nei publica iudicia, Cagliari 1996, 53 and followig.

[26] O. Lenel, EP, publ. 3, Leipzig 1927, 77.


[27] See: B. Sitek, Tabula Heracleensis (lex Iulia municipalis).Text, translation, comment, Olsztyn 2006, 65-70.


[28] Such a prosecutor was not allowed to appear with cases from public accusation (iudicia publica). Ven. 2 publ. iudic. (D.47.15.5): Accusator in praevaricatione convictus postea ex lege non accusat. (Prosecutor, who was condemned because of crimen praevaricationis,  subsequently, by virtue of  law cannot appear with the accusation).


[29] C.2.11.17. See: B. Sitek. Infamy In the legislation of Roman emperors, Olsztyn 2003, 218-219.


[30] Approved by C.C.B.E. (The Council of Bars and Law Societies of Europe) 28th  October 1988, modified on 28th November 1998 and on 5th December 2002. This Code is on http://www.ordineavvocativercelli.it/upload/file/codice%20deontologico%20avvocati%20europei.pdf [9 VIII 2009]


[31] The Code was accepted by the Italian Barristers’ Council (Consiglio Nazionale Forense) from 17th April 1997 and modified on 16th October 1999 and 26th October 2002. The text is available on http://www.2sing.it/codice/codice_deontologico_forense.html [9 VIII 2009].


[32] The Official Journal from 2000, no 123 item 1058.