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[15] The Advocate’s Dilemma: What Can You Tell the Client? A Problem in Legal Ethics James A. Brundage n When Ken Pennington came to my office in 1965 to tell me that he wanted to do graduate work in medieval history, the possibility that nearly forty years later I would be writing a paper for a Festschrift in his honor was certainly the furthest thing from my mind. That I am delighted to be doing so goes without saying. To have watched Ken become a scholar of unrivaled eminence in the field to which I first introduced him has been one of the greatest rewards of my career. I dedicate this brief note to him with heartfelt affection and the most profound esteem. The oaths that advocates and proctors took when they were admitted to practice in the courts of the medieval church outlined a series of ethical obligations that they solemnly undertook to observe in the practice of their profession.1 The duties that they thereby assumed fell into two categories: some were obligations toward their clients, while others were obligations toward the court, whose officers (but emphatically not employees) they became at the time of admission. Advocates and proctors had two principal kinds of obligations toward the court. First, they undertook to be its doorkeepers. They promised that they would screen every case that clients sought to bring before the court, that they would diligently examine the evidence that they hoped to rely on, and that they would agree to advise 201 1. I have dealt with this in several earlier studies of medieval legal ethics, especially ‘The Calumny Oath and Ethical Ideals of Canonical Advocates’, in: Proc. Munich (MIC C.10; 1997) 793–805, reprinted in: The Profession and Practice of Medieval Canon Law (Aldershot 2004) no. IV; and ‘The Lawyer as His Client’s Judge: The Medieval Advocate’s Duty to the Court’, in: Cristianità ed Europa: Miscellanea di studi in onore di Luigi Prosdocimi, ed. C. Alzati (2 vols. in 3 parts; Rome 1994–2000) 1.591–607. and represent only clients who they believed had bona fide cases. All others they would reject. When they were admitted to practice, lawyers assured the judge (or judges) of the court in which they were going to practice that they would make a preliminary assessment of the merits of every case and would reject any that they found unworthy of the court’s consideration. Should it happen that they accepted a client’s case only to discover subsequently that it was frivolous, flawed, or lacked merit, they would forthwith abandon the client, would withdraw from the case, and would inform the judge of their reasons for doing so. They assured the court, in other words, that its judges could rely absolutely on the integrity of its lawyers, who would see to it that judges wasted no time and effort on matters that were silly, inconsequential, or devoid of merit. Second, lawyers also promised at the time of admission that they would be scrupulously honest in their dealings with the court. They would not knowingly introduce into evidence any witnesses whose testimony they thought might be perjured or any documents that were forged or had been altered. Nor would they rely on any legal texts that they considered irrelevant or whose authenticity they doubted. In this essay I will examine one small element among these onerous undertakings, yet one that is hardly insignificant and continues to present moral and practical difficulties in the practice of law down to the present day. It represents, however, only one of the numerous difficulties that are apt to arise in communications between advocate and client. Any advocate, ancient, medieval, or modern, must obviously interview every prospective client before litigation commences in order to discover what the case is about, what the client’s version of the affair is, what legal action he is contemplating, and what he hopes to achieve by it. Once the advocate has done that and has determined whether or not he will accept the case, he needs to advise the client about his legal options in dealing with the matter and to suggest whatever opportunities, perils, and pitfalls he foresees in each approach. Together lawyer and client must agree on a method of dealing with the matter that both of them find acceptable. All of this may seem self-evident, but in practice it is usually neither as simple nor as straightforward as it may appear. Prospective...

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