The Lex Cincia and Lawyers’ Fees under the Republic

38 THE LEX CINCIA AND LAWYERS' FEES UNDER THE REPUBLIC L. A. Curchin [Demades] Hyper tes dodeketeias 21 It is a well-known fact that Roman lawyers under the Empire charged substantial, often exorbitant amounts. A host of li terary references attest such fees, 1 and legislative action was taken by the emperors Augustus, Claudius, Nero, Trajan and Diocletian to ban or limit them. 2 But a belief is current that the "Golden Age" of the Republic was free from such problems; that the lex Cincia of 204 B.e. had made lawyers' fees illegal and that Cicero and other paragons of classical oratory represented their clients wi thout charge. Standard reference works on Roman 1 Qv. Am. 1.10.39; Petron. 46; Quint. Inst. 12.7.8; Mart. 2.13, 2.30, 8.16.1-2, 8.17; Juv. 7.124-149; Dio Chrys. 7.123; Pliny Ep. 2.20.13, 5.4.2, 5.13.6-7; Tac. Dial. 8.1, Ann. 11.5-7; Philostr. VS 1.22.4; AmID. Marc. 30.4.15, 20; Dig. 4.8.31, 19.2.38.1, 50.13.1.10-13. Cf. L. Friedlander and G. Wissowa, Sittengeschichte Rorns, 10th ed. (Leipzig, 1922) 184-186. 2 Augustus ordered advocates to provide their services without charge on penalty of a fine four times the amount of their fee (Dio Cass. 54.18.2); this was the same penalty applied against fraud, peculation and usury (Cato Agr. 1.1; Lex 17TW1. Tarent. 5; Tac. Ann. 6.16; Cod. Theod. 2.33.2; Dig. 48.13.15[13]). Claudius set a limit of 10,000 sesterces: Tac. Ann. 11.7; Pliny Ep. 5.9.3-4. For the later emperors see Tac. Ann. 13.5; Suet. Ner. 17; Pliny Ep. 5.13.8; Diocletian Edictwn de pretiis 7.72. 39 L. A. CUR CH I N advocates jump from the lex Cincia to the edicts of the emperors without sugges ting that any viol at ions took place before the Imperial period. 3 Shatzman goes out of his way to exonerate Cicero from the charge of violating the Lex Cincia. 4 Textbooks on Roman law and customs agree that advocates would necessaril y work wi thout remuneration , since they were rich gentlemen providing a publi c service for thei r grateful but indigent clients. 5 The fact of the matter is, however, that the charging of fees, while technically illegal, was a common practice in the Late Republic and even - as we shall demonstrate in the Middle Republic. The conflicting ancient opinions the Lex Cincia are reflected in Taci tus I account of the Senate debate in A.D. 47. The opponents of fee-taking held that its practi tioners were mercenary and extortionate. The counter-argument was that all senators had to earn a living, advocates no less than others, and without such remuneration the profession would suffer. Those lawyers who in the past had pleaded wi thout reward did so because they were already rich and did not need the money (Tac. Ann. 11.5-7). This defence was not wholly convincing, 3 J. Gow, A Companion to School Classics, 3rd ed. (London, 1891) 251; A. Berger and B. Nicholas, Oxford Classical Dictionary, 2nd ed. (Oxford, 1970) 11. 4 I. Shatzman, Senatorial Wealth and Roman Politics (Brussels, 1975) 70- 71. 5 C. Daremberg and E. Saglio, Dictionnaire des antiquites grecques et romaines, vo1. 1 (Paris, 1877) 89; J. M. Kelly, Roman Litigation (Oxford, 1966) 84 n. 1; J. P. V. D. Ba1sdon, Idfe and Leisure in Ancient Rome (London, 1969) 130; A. Watson, The LaLJ of the Ancient Romans (Dallas, 1970) 7. 40 THE LEX CINCIA AND LAWYERS' FEES UNDER THE REPUBLI C as Tacitus himself recognized, but it did enable the feetakers to rationalize their actions. There is no reason to doubt that this line of argument was already current prior to the Imperial period. Because the lex Cincia remained in effect, lawyers were not likely to announce openly that they had accepted fees. Nonetheless, considerable evidence can be marshalled to show that thi s was the case. Cicero' s rival Hortensius is a splendid example. A bon vivant who...