6. Abuses committed by Advocates and Legal Procurators

provisions applies also in this case. The corruption of jurymen by money or promises is one form of the English Common Law misdemeanour known as "Embracery".

6. Abuses committed by Advocates and Legal Procurators

The institution of the college of Advocates and Legal Procurators has the purpose of assisting the administration of justice. For this reason, the law, on the one hand, affords them protection and confers rights and privileges on them, and, on the other hand, imposes upon them important duties. Advocates and Legal Procurators appear before the Courts of Law as functionaries of the same and the law makes it the duty of every Court to maintain to them, in the exercise of their duties the most ample liberty, consistently with the law, and to repress "ex officio" any insult which may be offered to them in its presence (sec. 995 Code of Organization and civil Procedure). But the dignity and importance of the Legal Profession and the rights and prerogatives which the law bestows on it are precisely an additional reason why its members should not deviate from the right path and why the law should repress in a special manner abuses which they may commit to the prejudice of justice and to the injury of individuals.

There are two such abuses of a sufficiently grave character as to call for penal sanction and be characterised as crimes. Other minor abuses or failures committed by legal practitioners in the exercise of their profession and in connection with professional matters, are dealt with by the special disciplinary procedure provided for in the said sec. 995 of the Code of Organization and Civil Procedure.

The two abuses above referred to constitute what in continental law and doctrine is known by the traditional, general name of “prevarication”. The first one is committed by any Advocate or Legal Procurator who, having already commenced to act on behalf of one party, shall, in the same cause or in any other involving the same matter and interest in opposition to the same party or to those claiming under him, go over to act on behalf of the opposite party, without the consent of the former (sec. 120).

The second is committed by any Advocate or Legal procurator who betrays his client so that, in consequence of his fraud or his fraudulent omission, the client loses his cause or any right whatever is barred to his prejudice (sec. 121).

The definitions of these two crimes are sufficiently detailed and clear and do not require any lengthy explanations. It may be useful, however, to make some short remarks concerning some of the expressions used.

Generally speaking a legal practitioner is free to accept or refuse to act on behalf of a person, like say "generally speaking" because there are cases in which it is not permissible for him to refuse his services without a reasonable cause, e.g., when he is specially assigned to a defendant by the Court (sec, 555 et seq. Criminal Code, sec. 926 Code of Organization and Civil Procedure). Moreover we state the rule above with some hesitation one of the most important rules of obligation governing the English Bar is that which compels its members to accept any brief in the Court in which they propose to practice, provided that a proper fee is paid, unless there are special circumstances justifying a refusal to accept the brief. Addressing a young barrister in his most interesting little book "Letters to a young Barrister"183 , F.I. Wrottosley thus writes:

"You have no right to refuse to appear for a client just because you think he is in the wrong nor because the conduct with which he is charged is peculiarly atrocious nor because he is identified with some cause of which you disapprove. Your profession places you upon the rank and you are as much at the services of the first comer as is a cabman" (pg. 8).

But, having in any way commenced to act on behalf of one party an Advocate or Legal Procurator is no longer free to abandon him and go over to the other side. So that this change-over may constitute the crime, under Section 120, it is necessary that:

(i) He shall have already / commenced to act on behalf of one party.

(ii) He goes over to the opposite side in the same cause or in any other involving the same matter and interest.

(iii)In opposition to the original client or those claiming under him; and

(iv) Without his or their consent.

183 Sweet and Maxwell 1930

With regard to condition (i) the mere acceptance to be briefed without having as yet done any act in the capacity of counsel is not, according to Roberti, sufficient:

"La semplice accetazione di una difesa, senza essersi fatto alcun atto dall'avvocato o patricinatore in tale qualità non basterebbe punto per costituire il reato quando anche concorresse il secondo estremo, cioè il passaggio alla difesa della controparte"184 .

If an advocate or Legal Procurator makes the changeover in such circumstances, he will undoubtedly commit a grave indiscretion and perhaps an immoral act. But it is not this the said writer says that the law here visits with a penal sanction. But other writers opine that, once an Advocate or Legal Procurator has definitely accepted to act for a client, he is guilty of this crime if he goes over to the opposite party – assuming, of course, all other ingredients concur. What would not be sufficient according to these other writers is, for instance, a mere “opinion” given to a client.

“E’ concorde”, says Carrara, "appò tutti la opinione che limita la criminalità al caso di difesa accettata, cioè di mandato definitivamente conferito: finchè si tratta di semplice consulto, non vi e' luogo a repressione penale per quanto possa essere brutta cosa il dare oggi all'uno un consulto in senso, e dar poi domani all’altro un consiglio in senso contrario”185 .

And Maino observes that:

"Perchè la difesa si intende cominciata, non si deve materialmente richiedere che abbia avuto luogo qualche atto giudiziale; basta che da parte del cliente abbia- no avuto luogo confidenze o comunicazioni di documenti, o che siasi altrimenti fissato il sistema di difesa"186 .

In any case no Advocate or Legal Procurator can confide to third parties any professional communications received in confidence as long as he was acting in a professional capacity. He may never use such information to his client’s detriment even after the relationship of counsel and client has ended, and should he become

184 Roberti, op. cit., Vol. V, pg. 333, para. 620 185 Prog. Parte Spec., Vol. V., para. 2601, Note 186 Op. cit., art. 223, para. 1149

the counsel opposed to his former client he may not use this information obtained in confidence to embarrass his former client187 .

To constitute the crime we are discussing, the changeover must be in the same cause or in another involving same matter and interest. It is hardly necessary to point out that the expression the same cause embraces all stages of the proceedings of the same judicial dispute.

Until upon such dispute there is a final and absolute judgement, it is all along the same cause.

The changeover must be without the consent of the former client or those claiming under him, still engaged in the proceedings. Roberti thinks that if such client himself abandons his Advocate or Legal Procurator, this is free to go over to the opposite party without incurring any liability for this crime, saving always his ligation to respect professional secrets.

With regard to the crime under sec. 121 two elements are required:

(i) the fraud or fraudulent omission on the part of the Advocate or Legal Procurator

(ii) the actual injury to the client, consisting in losing the case or in having any right barred to his prejudice.

The betrayal of the clients must be due to the fraud or fraudulent omission, that is to deceit or malice. Indeed, it is a general rule that provided a legal practitioner acts honesty, neither his skill nor his wisdom, nor his industry can be questioned by a disappointed client. On the other hand, however, our law does not require that this fraud or fraudulent omission should be the result of corruption as was required for instance, in art. 209 of the Neapolitan Code which expressly mentioned "gifts, rewards, offers or promises”. There can be collusion without “animus lucrandi" any at all on the part of the legal practitioner, as for instance, from hatred or hostility against the silent or even from a feeling of misdirected pity towards the other party. Even in such case, the essence of the crime consists in the betrayal of the loyalty which is owed the client,

187 Wrottesley, op. cit., pg. 10; vide sec. 270, sec. 638 Criminal Code, sec. 587 Code of Organization and Civil Procedure