Search for Truth and Defend the Client: Can a Lawyer Do Both?*

Raffaella BIANCHI RIVA*

Università degli Studi di Milano
raffaella.bianchi@unimi.it

Abstract: A deontological model of legal ethics took shape over the course of the Middle Ages and early modern period, thanks to contributions from both jurisprudence and moral theology. With bans on defending unjust causes and resorting to unjust means to defend a cause, the defense lawyer became part of a legal process that sought to ascertain the truth – a key contributor to the administration of justice. However, jurists and theologians made some compromises when it came to these rules, affirming that a lawyer also had a duty to defend his client to the fullest.

Key words: Lawyer; legal ethics; truth; defense

Summary: 1. Introduction: Medieval and early modern legal ethics.2. The lawyer’s oath.3. From the lawyer’s oath to the ban on defending unjust causes.3.1. The definition of an ‘unjust cause’.3.2. Doubtful causes.4. Criminal trials: The duty to defend a client.4.1. Lawyer-client privilege.5. The ban on resorting to unjust means to defend a cause.6. The relationship between the defense lawyer and his client.7. The accused under questioning: Conflict between the search for truth and the right to counsel.8. Concluding remarks.

1. Introduction: Medieval and early modern legal ethics
The role of a defense lawyer has always been quite ambiguous. Indeed, a defense lawyer is often at the center of conflicting values and interests, which are sometimes even openly at odds. Thus, he is continually forced to make choices.

On the one hand, a lawyer contributes to the administration of justice through his defense by helping the judge reach the correct ruling. The judge, while technically attempting to reconstruct the formal legal truth, always aspires to get as close as possible to the substantive truth. On the other hand, a lawyer promotes and defends the interests of his client, who is not interested in a just sentence but rather a favorable one.

Indeed, this ‘dual loyalty’ is part of the current judicial system: loyalty to the client on the one hand, to the judicial system itself on the other.
As stated in the Code of Conduct for Italian Lawyers (art. 1), ethical rules are ‘essential’ in order that a balance can be struck between these two ostensibly contrasting principles. Only by respecting the Code of Conduct can lawyers maintain this dual loyalty to the defense of their client and to justice itself.

From a historical perspective, in what ways and to what extent have ethical rules achieved a balance between these values? And what role has been assigned to the lawyer as a result of this balance?

First and foremost, it must be clarified that a deontological model of legal ethics began to take shape in the Middle Ages and early modern period thanks to contributions from both jurisprudence and moral theology (although it is a well-known fact that the term ‘deontology’ was coined by Jeremy Bentham, we shall nonetheless use this expression in reference to the Middle Ages and early modern period, as many of the principles and issues at the center of the current debate were dealt with in those centuries).

Morality has contributed so much to the formation of this model that it still influences the current debate over whether ethical rules are legal or moral in nature. Indeed, up until the enactment of the Code of Conduct for Italian Lawyers in 1997, these rules were considered essentially moral in nature; as such, they were interpreted subjectively and at one’s own discretion, to paraphrase the criticism of Remo Danovi. Only upon approval of the Code of Conduct was it possible to move beyond this view and establish the legal nature of ethical rules for lawyers (despite the fact that, as the term itself suggests, their content was primarily ethical in nature). This was subsequently reaffirmed by Italy’s Court of Cassation.

Regulation of the legal profession was shaped by a broad range of sources: texts from Justinian’s compilation and canonist collections, scholarly contributions to the doctrine of civil law and canon law, the ordines iudiciorum, royal decrees, statute law; but also works in moral theology, in particular the Summa theologiae by Thomas Aquinas (IIa IIae q. 71), the summae confessorum, and texts from the School of Salamanca.

In the early modern period, these sources gradually converged in treatises on advocacy, which took a specialized look at the legal profession beginning at the end of the fifteenth century. Mostly written by lawyers and judges, and sometimes even by ecclesiastics, these treatises represented scholarly work conducted outside of a university context. The aim was not only to provide defense lawyers with practical advice for their everyday practice, but also to collect the rules of professional conduct in one place, which up until then had been scattered among various legal and theological texts (yet another reason for this was to curb abuses and failings among lawyers, which the writers themselves reported as being quite frequent).

Thus, these precepts applied to the internal forum just as much as they did to the external forum. In this regard, it is important to remember that the separation of law and morals began in the sixteenth century but would not be complete until the end of the eighteenth century; and though this process would eventually lead to a distinction between legal rules and moral rules, it meant that between the sixteenth and seventeenth centuries, the entire debate over legal ethics was centered around the potential conflict between the internal and external forums.

In their treatises, these writers set out the duties of lawyers in terms of their relationships with colleagues, judges and clients. And while they have been adapted to the times, these same principles and rules can still be found today in the Code of Conduct for Italian Lawyers.

Some specific examples are the duty of loyalty (art. 10) and the duty not to disclose confidences and secrets (art. 13), the violation of which is a criminal offense (articles 380, 381 and 622 of the Italian Penal Code); the duties to carry out the profession with diligence (art. 12) and to represent the client competently (art. 14), which not only ensures the quality of a lawyer’s professional performance, but also implies civil liability; the duty of independence (art. 9); and issues concerning legal fees (currently at the center of a legislative debate), in particular the ban on contingent fee agreements (art. 25).

Other rules have undergone more significant changes since the Middle Ages and early modern period, including in the actual language used to describe them: specifically, I am referring to what was known in the age of the ius commune as bans on defending unjust causes and resorting to unjust means to defend a cause. These rules helped create a specific, deontological model of legal ethics in which the defense lawyer became part of a legal process that sought to ascertain the truth – a key contributor to the administration of justice. Today, we know these rules as the duty to act honestly and the duty to act truthfully.

2. The lawyer’s oath.
As stated above, the ban on defending unjust causes could be linked to the duty to act honestly, which is currently established in article 9 of the Code of Conduct (included among the other fundamental duties of a lawyer), as well as in article 88 of the Italian Code of Civil Procedure and article 105 of the Italian Code of Criminal Procedure. In particular, there was a rule in the previous Code of Conduct wherein this duty was described using similar words to those used in article 96 of the Code of Civil Procedure on vexatious/frivolous litigation (art. 6 of the 1997 Code of Conduct for Italian Lawyers).

More of a general principle than it is a rule, it concerns all activities that a lawyer is to carry out during trial. It obliges the lawyer to contribute to the administration and efficiency of justice: that does not mean that a lawyer must make sacrifices in defending his client to the fullest, but rather that he must not defend the client to such an extent that he loses awareness of the institutional purpose of the trial.

This principle was developed over the course of the Middle Ages through jurists’ reflections on the lawyer’s oath, which was required in accordance with Justinian’s constitution rem non novam of 530. Justinian wanted to avoid abuse of process: as such, the oath de calumnia was to be taken immediately after the litis contestatio to demonstrate that the parties were acting in good faith. Lawyers were thereby bound not to accept the charge if they believed the cause was dishonest (improba), unfounded (penitus desperata) or fraudulent (ex mendacibus allegationibus composita); if such were to emerge during the trial, they were to immediately abandon their defense:

Patroni autem causarum, qui utrique parti suum praestantes ingrediuntur auxilium, cum lis fuerit contestatam, post narrationem propositam et contradictionem obiectam in qualicumque iudicio maiore seu minore vel apud arbitros sive ex compromisso vel aliter datos vel electos sacrosanctis evangeliis tactis iuramentum praestent, quod omni quidem virtute sua omnique ope quod iustum et verum existimaverint clientibus suis inferre procurent, nihil studii relinquentes, quod sibi possibile est, non autem credita sibi causa cognita, quod improba sit vel penitus desperata et ex mendacibus adlegationibus composita, ipsi scientes prudentesque mala conscientia liti patrocinantur sed et si certamine procedente aliquid tale sibi cognitum fuerit, a causa recedant ab huiusmodi comunione sese penitus separantes[1].

Nonetheless, the oath seemed to have fallen into desuetude by the middle of the twelfth century. Indeed, the sources tell of an episode that reportedly centered around two of the four doctors studying under Irnerius and Emperor Frederick Barbarossa: according to Odofredus, the Emperor was said to have asked Bulgarus and Martinus whether an oath was still required and practiced in their time, and they answered that it had become customary not to take the oath in court:

Or signori, in ista secunda parte huius legis nota quod dum quadam die dominus Fredericus senior quesivisset a domino Bulgaro et Martino: Dicatis mihi, ego intellexi quod lite contestata a litigatoribus, patroni causarum debent iurare quod non fovebunt iniquam litem, et si in processu cognoverit iniustam litem fovere clientulum suum, quod deferent causam illam: cur non facimus quod advocati in foro nostro ita iurent? Ad quod ipsi respondent hoc iure cavetur, licet consuetudine non habetur[2].

A debate on the relationship between law and custom was already under way in the Bologna school, leading the glossators to describe this custom of not taking the oath de calumnia as a general custom, seeing as how it was in practice everywhere. According to the original distinction introduced by Bulgarus and then subsequently adapted by Johannes Bassianus, Azo and lastly Accursius, the glossators believed that this custom had nullified the constitution rem non novam. Indeed, according to Azo,

generalis consuetudo pro hoc est, quod nec in Italia nec in Francia vides observari, quod iurent advocati in causis. Unde haec consuetudo tollit legem[3].

Medieval jurisprudence attempted to reinstate the oath-taking requirement in order to reaffirm the fundamental principles of the profession and curb abuse. What arguments were used to achieve this goal?

The commentators continued in the glossators’ footsteps for what concerned the relationship between law and custom. They introduced a distinction between custom and desuetude: if a norm was constantly and repeatedly in practice, and that norm was different from the one provided for by written law, then it would nullify the written law; however, the mere inobservance of a written law would not nullify it. Therefore, as affirmed by Cynus (in reference to Pierre de Belleperche), the constitution rem non novam was to be considered still in force:

Secundo quaeritur nunquid observandum sit quod haec lex dicit sic de iure isto scripto, sed Bul. dicit quod de consuetudine non servatur et sic de facto cum peteretur a beo iuramentum respondit. Sed Pe. dicit quod Bulg. male dixit, quia iura non abrogantur, licet non fuerint usitata, nisi consuetudo contraria irrepserit, nam si sic tollerentur leges, multae leges infortiati essent sublatae[4].

The canonists maintained that the institute was still in force based on the principles of canon law. It should be noted that on a local level, canon law also provided for oaths that were similar to the Justinian oath, and that in 1274, it became required for all lawyers who worked in ecclesiastical courts to take an oath (nonetheless, this rule was not included in the Liber Sextus). Failure to comply would result in disbarment from the profession:

Properandum nobis visum est, ut malitiosis litium protractionibus occurratur: quod speramus efficaciter provenire, si eos, qui circa judicia suum ministerium exhibent, ad id congruis remediis dirigamus. Cum igitur ea, quae ad hoc salubriter fuerant circa patronos causarum legali sanctione provisa, desuetudine abolita videantur: nos sanctionem eamdem, praesentis redivivae constitutionis suffragio, cum aliqua tamen adiectione, nec non et modera mine renovantes, statuimus ut omnes et singuli advocationis officium in foro ecclesiastico, sive apud sedem apostolicam, sive alibi, exercentes, praestent, tactis sacrosanctis evangeliis, iuramentum, quod in omnibus causis ecclesiasticis, et in aliis in eodem foro tractandis, quarum assumpserunt patrocinium, vel assument, omni virtute sua, omnique ope, id quod verum et iustum existimaverint, suis clientulis inferre procurent; nihil in hoc studii, quod eis sit possibile, relinquentes, quodque in quacumque parte judicii eis innotuerit improbam fore causam, quam in sua fide receperant, amplius non patrocinabuntur eidem, immo ab ea omnino recedent, a communione illius se penitus separantes, reliquis quae circa haec sunt in eadem sanctione statuta, inviolabiliter observandis[5].

Although the canonists did not contest the glossators’ theory – namely, that the custom of not taking an oath could nullify the law – they nonetheless warned that the enforcement of such a rule would provide lawyers with an occasion of sin. Indeed, while Hostiensis referred to the custom of not taking the oath de calumnia as an example of a very widespread («generalissima») custom, he believed that aequitas canonica called for an exception to the rule (which, as mentioned above, would have nullified the constitution rem non novam): such was justified by the need to guarantee honest conduct on the part of defense lawyers:

per hanc dicunt abrogatam legem quae dicit quod patroni sive advocati iurare debent in initio litis quod contra conscientiam causam non foveant desperatam Cod. de iud. rem non novam unde dixit Bul. Quod iuramentum lege cavetur sed in consuetudine non habetur […] quamvis advocati pro magna parte cavilosi et malignari volentes et sibi adinvicem deferentes hanc glossam Bul. Amplectant, ipsam tamen non approbo, quia contra legem illam non puto valere consuetudinem vel desuetudinem, sicut nec valet consuetudo quod de calumnia non iuretur infra de iura. calu. ceterum et est ratio in utroque ne per talem consuetudinem peccata mortalia nutriant et quicquid velant vel palliant pessimi advocati quamvis non iurent si contra conscientiam foveant edificant ad geennam[6].

The fact that the oath was not actually taken led to two consequences.
On the one hand, there was an institutional response. Local judicial systems developed alternative or additional kinds of oaths in place of the one required by the ius commune.

European monarchies required lawyers to take an oath, not only to remind them of their fundamental duties, but also to make it clear that they were subservient to the judges.

For example, as part of his efforts to centralize power, Frederick II introduced an oath that was very similar to the Justinian oath, though much more detailed. It was to be taken upon admission to the legal profession and renewed yearly:

Advocatos tam in curia nostra quam etiam coram provinciarum justitiariis et bajulis statuendos necnon et per partes singulas regni nostri, ante receptum officium tactis sacrosanctis evangeliis corporalia volumus sacramenta prestare: quod partes quarum patrocinium susceperint cum omni fide et veritate sine tergiversatione aliqua adjuvare curabunt, ipsas de facto instruent, contra veram conscientiam nullatenus allegabunt, et quod causas non recipient desperatas, et si quas forte receperint partis fortasse mendaciis coloratas, que juste sibi in principio videbantur, et in processu judicii vel de facto vel de jure compareant ipsis injuste, ipsarum patrocinium incontinenti dimittent; sprete parti, prout priscis legibus et statutum, licentia convolandi ad alterius patrocinium deneganda. Jurabunt etiam quod augmentum salarii in processu judicii non requirent nec de parte litis ineant pactiones[7].

The communes did the same thing.

For example, the 1331 statute of Bergamo simply reaffirmed that the oath de calumnia was required, in accordance with the ius commune. In all probability, the only purpose for doing so was to strengthen the oath’s effect:

Item statuerunt et ordinaverunt quod in qualibet causa, coram quacumque iudice ventilanda, iurare debeant partes de calumpnia. Et quod procuratores et advocati iurent quod malitiose non calumpniabuntur in causis, in quibus erunt advocati et procuratores. Que sacramenta prestentur in initio cuiuslibet cause[8].

Other communes introduced a lawyer’s oath in order to respond to specific needs. Such was the case in Lucca, where the statutes of 1308 forbade lawyers from bringing or continuing with an appeal if they believed that the original sentence was just:

Et omnibus iudicibus et causidicis lucanae Civitatis, qui feudum et beneficium a Comuni lucano vel Camera Lucani comunis habent, precipiam per sacramentum infra mensem mei introytus, ut nullum consulent appellare vel appellationem prosequi, nisi eidem iudici vel causidico videtur quod appellans iniuste fuerit condemnatus[9].

3. From the lawyer’s oath to the ban on defending unjust causes.
Many of these oaths would meet the same fate as Justinian’s.

In the sixteenth century, for example, Matthaeus de Afflictis recounted how not taking the oath had long been customary practice («vetustissima»), and how the rule in the Liber Augustalis requiring such an oath had fallen into desuetude at least a century beforehand[10].

This brings us to the second consequence of the inobservance of the oath: jurists independently redeveloped the rules contained in the oath’s wording, requiring that it be respected regardless of whether it had formally been taken or not.

However, there was a change in the expression used to describe the causes that a lawyer was not allowed to defend. While the constitution rem non novam (as well as the majority of other legislative texts) spoke of causa improba or desperata, jurists now almost always referred to causa iniusta, taking their cue from theology.

In his Summa theologiae, Thomas Aquinas affirmed that any lawyer who defended an unjust cause would commit a sin[11].

A lawyer was to rely on his own conscience to determine whether a cause was unjust and thus one that could not be defended. This meant that a lawyer could not defend a cause if, deep inside, he felt that it was ‘unjust’. Indeed, the ban on defending unjust causes also entailed a ban on defending contra conscientiam.

3.1. The definition of an ‘unjust cause’.
The problem was when a legal action was juridically legitimate, but unjust according to the lawyer’s conscience.

One clear example is a nudum pactum. According to Roman law, a mere promise does not give rise to action; however, it does oblige the promisor in conscience, and indeed canon doctrine recognized it as actionable. Could a lawyer defend someone who was taken to court because he had not honored his promise? Such a defense would have been legitimate from a juridical point of view, but in its essence it was still unjust.

Another example can be found in so-called ‘natural obligations’. The debtor is not legally bound to fulfill such an obligation, but he is morally bound to do so (and indeed, in the Italian system, a creditor cannot take action against a debtor in order to enforce the fulfillment of a natural obligation, but in the event that the debtor fulfills the obligation of his own volition, he cannot reclaim the amount paid to the creditor). Could a lawyer defend a debtor who was taken to court because he had not fulfilled a natural obligation?

In other words, it was a matter of determining what an ‘unjust cause’ really meant: only one which had no legal basis, or also one which went against a moral truth?

Jurists tended to limit the category of unjust causes to those that had no legal basis.

A good example of this can be found in the action for recovery of possession, as demonstrated by Innocent IV. Indeed, the legal system protected the possession of the spoliatus, even if he was not the rightful owner of the property; in this case, could a lawyer defend the spoliatus against the spoliator, even when the latter was actually the real owner (and thus the action for recovery of possession occurred in order to restore the property to its rightful owner)?

According to Innocent IV, a lawyer could even defend a bad-faith spoliatus. He maintained the reference to a lawyer’s conscience, but he introduced a distinction between conscientia legis and conscientia hominis: when forbidding a lawyer to defend a cause that went against his conscience, one could not refer to the human conscience (understood as the ultimate goal of justice), but rather to the ratio of the laws (which presumably would emerge in the judge’s sentence):

Advocatus licet faveat iniusto possessori olim qui petit restitui: non tamen dicitur propter hoc habere conscientiam lesam […] quia est pica et organum legis scripte: et advocatus non debet habere conscientiam hominis, sed legis: certe lex bona est si quis ea ratione utatur[12].

Indeed, the sentence would determine a posteriori whether the cause defended by the lawyer had been a just cause or not (and thus, whether he had violated ethical rules).

Theologians adopted a different solution, which was also outlined in treatises on the legal profession.

In order to determine the justness or unjustness of a cause, a lawyer’s only point of reference was to be his own conscience, regardless of what the possible outcome of a dispute might be.

Thus, returning to the example of the action for recovery of possession, the treatises stated that a lawyer could not defend the spoliatus in the event that the spoliator was without question the rightful owner[13].

A similar stance was adopted regarding the above-mentioned examples of a nudum pactum or natural obligation: a lawyer could not defend a person whose position was unjust «in foro conscientiae», even if the legal system technically protected that person[14].

Nonetheless, it should be noted that any violation of this ban on defending unjust causes did not lead to legal sanctions. Indeed, the only consequence for a lawyer was that he would commit a sin.

3.2. Doubtful causes.
Jurists and theologians recognized that it was difficult to evaluate the justness, or better the unjustness of a cause in limine litis. Based on their common experience, they found that in the majority of cases, there were always some critical issues to address.

A compromise would have to be reached in the practical application of the rule: in those frequent cases of doubt, a lawyer would be allowed to represent the defendant, as it was not his task to determine the justness or unjustness of the cause (the judge was responsible for doing that); rather, he was to defend the client in the best way possible (provided there were at least some grounds for taking on the case).

In the fourteenth century, Albericus de Rosate concluded that if a defense lawyer accepted a charge despite harboring doubts about the justness of the cause, he would not commit a sin:

ultimo quaero utrum advocatus peccet iuvando partem cum dubitat quod non sibi aperiat veritatem causae suae. Et videtur quod peccet […] Ad hoc facit quod dicitur vasallum non teneri iuvare dominum si dubitat utrum iuste moveat bellum vel non […] Circa hoc vide, quod non peccat, supponere enim debet, quod iudex causam diligenter examinabit, et pronuntiabit, quod iustum fuerit et aliud est in bello aliud in iudicio nam in bello viribus vincitur, in iudicio iuribus[15].

The only duty that the lawyer was obliged to uphold was to inform his client of his chances of winning the case. This was part of a more general duty to keep the client informed, which is still recognized today in article 27 of the Code of Conduct. Giovanni Pietro Ala, a jurisconsult from Cremona, recommended the same thing in the early seventeenth century, when he wrote two treatises on what it meant to be a ‘good lawyer’[16].

4. Criminal trials: The duty to defend a client.
When it came to criminal trials, jurists and theologians pondered what might be the ultimate test of a lawyer’s conscience: namely, what to do if the client were to confess to the lawyer that he committed the crime.

This case presented a defense lawyer with two choices: either continue to defend the client, which might even mean hindering the search for truth; or withdraw his defense and help restore justice, which might even lead a lawyer to take the extreme measure of reporting the client to the authorities.

In the same way seen above, jurists resolved this problem by referring to the judge’s sentence. At the beginning of the sixteenth century, Matthaeus de Afflictis affirmed that, even if the lawyer was aware of his client’s guilt, defending such a case would not go against professional rules as long as the judge acquitted the defendant in his sentence:

si advocatus habet conscientiam quod Titius interfecit hominem et ex processu apparet qupd non fuit ipse, licet eum defendat, non dicitur facere contra conscientiam legis[17].

Theologians affirmed that any lawyer who received a confession from his client could nonetheless continue with his client’s defense, and that he should seek an acquittal – or at least a reduction in the sentence – by pointing out procedural errors, for example. This was asserted in the middle of the sixteenth century by one of the most famous exponents of the School of Salamanca, Domingo de Soto; indeed, he believed that in the most serious of criminal trials, a lawyer could represent a defendant even if there was little to argue before the judge and the chances of an acquittal were slim, so long as the defendant did not represent a particular threat to society:

Quando enim est causa mortis, aut sanguinis, aut ubi honor alicuius percìiclitatur […] in hisce casibus potissimum causa capitis, nisi reus perniciosissimus haberetur pium esset eius suscipere patrocinium, etiam si eius causa minoris esset probabilitatis[18].

Juan Pablo Xammar followed in the footsteps of Domingo de Soto. In a treatise on judges and lawyers published in 1639, the Catalan judge stated that a lawyer was to withdraw from a case only if there were no arguments to be made in the client’s defense («si nullum eum colore tueri posset»)[19].

In other words, the ban on defending unjust causes did not apply to criminal trials. Giuseppe Zanardelli would affirm as much at the end of the nineteenth century, when he limited the ban on defending unjust causes (he still used those words at the time) to civil cases only, citing that «in the criminal justice system, not only is it legitimate to defend an evil cause, it is obligatory, because humanity commands it, mercy demands it, custom establishes it, and the law requires it»[20].

4.1. Lawyer-client privilege.
In the event that a lawyer decided to withdraw his defense, the problem was whether to reveal what he had learned and thereby ensure that truth prevailed, or maintain the secret but thereby obstruct identification of the culprit.

Lawyer-client privilege was recognized as far back as the Middle Ages, when it was forbidden for a defense lawyer to reveal facts that he had learned while representing a client[21], even if he was called to testify in court[22], and despite the fact that the very act of withdrawing from the case would have made it clear that there were irreconcilable differences between the lawyer and the client.

However, this duty of confidentiality was not as important as preventing serious harm from befalling third parties: for that reason, if it became necessary to disclose information provided by a client in order to avoid exposing the other party or the community to irreparable harm (the primary concern at the time was any crime of lèse-majesté, which threatened public order), then the lawyer was authorized (and actually required) to reveal that information. In any case, he was to make disclosures only to the extent necessary to prevent harm, which is still a rule today (art. 28 of the Code of Conduct)[23].

5. The ban on resorting to unjust means to defend a cause.
Once a lawyer decided to represent a client, what defense strategies could he resort to based on the rules examined up to this point? In other words, were there any limits as to what he could do in defense of his client?

These questions have to do with the ban on resorting to unjust means to defend a cause, which, as stated above, can be linked to today’s duty to act truthfully (art. 50 of the Code of Conduct).

It should be noted that the duty to act truthfully is an ethical rule only, as a defense lawyer and defendant are not required to do so according to procedural rules. Although preliminary drafts of the Italian Code of Civil Procedure considered including such a rule, the final version opted to require simply a generic duty to act fairly (the same applies to the Italian Code of Criminal Procedure): indeed, it was feared that the inclusion of a duty to act truthfully would have forced the lawyer and defendant to produce evidence contra se.

In the Middle Ages and early modern period, canon law was used as the basis for affirming that a lawyer could resort to any defense techniques necessary to win a trial if it was a just cause. In other words, any means was justified if it meant that the justice would prevail.

Indeed, the ordinary gloss on the Decretum, completed by the first half of the thirteenth century, allowed a lawyer to deceive the counterparty («decipere adversarium suum»)[24]; in particular, the gloss on the Liber Sextus pointed out that «qui habet ius in principali, cavillationes et malitias adversarii potest per alias repellere»[25].

Canonist theory referred to the art of rhetoric – or at least, jurists and theologians would continue to come back to rhetoric as they debated defense strategies in the centuries that followed. Basically, lawyers were allowed to make their case in any number of ways, for example by embellishing their defenses with «colorata et persuasiva», because it had been observed that even if a certain topic was not entirely relevant to the dispute, it could nonetheless influence the judge’s opinion[26].

But was there any limit to what a lawyer could do with his oratory skills? Could he claim factual circumstances that did not actually correspond to reality? Or did he have to limit himself to providing a partial account of the facts or an incomplete description of what legal doctrine had to say about the issue?

In that regard, the duty to act truthfully served as a limit. Out of respect for his key role in the administration of justice, a lawyer could not produce false evidence or make false statements during legal proceedings. This meant that he could not produce false documents, suborn witnesses, or procure a client to commit perjury (fraudulent conduct of this nature was a criminal offense).

However, the duty to act truthfully did not require a lawyer to produce evidence if this might be detrimental to the client. Thomas Aquinas had already made this clear in his Summa theologiae, wherein he stated that the astute lawyer could conceal that which might be favorable to his opponent, making reference to an analogy between military defense and legal defense:

militi vel duci exercitus licet in bello iusto ex insidiis agere ea quae facere debet prudenter occultando, non autem falsitatem fraudolenter faciendo […] Unde et advocato defendendti causam iustam licet prodenter occultare ea quibus impediri posset processus eius, non autem licet ei aliqua falsitate uti[27].

Nonetheless, there was sometimes a very fine line between employing methods of argumentation (lawful) and resorting to falsehoods (unlawful). Alciatus highlighted just that in his commentary on de verborum significatione in the Digest, wherein he clarified that there was always an element of falsehood in sophistry:

Cavillari variis modis accipitur. Cavillatur, qui calumniose agit. Cavillatur, qui breviter et false adversarium sermone captat, aut irridet. Cavillatur, qui sciens, ut suam sententiam tueatur, falsa prodit […] Sed an huiusmodi cavillationibus uti advocatum deceat? Et gravi viro convenit numquam uti 23 q. 2 dominus, nec enim debet quis de victoria magis quam de veritate esse sollicitus[28].

6. The relationship between the defense lawyer and his client.
In criminal trials, the issue of acting truthfully also applied to the relationship between the lawyer and his client, and specifically as regarded the advice a lawyer could give his client in preparation for questioning.

There was a real chance that a lawyer could instruct his client to deny having committed the crime, and indeed criminal law scholars had debated over the possibility of having a court official be present whenever a lawyer met with his client in order to monitor the lawyer’s conduct. Nonetheless, this possibility was flatly rejected towards the end of the sixteenth century in the additio to Claro’ Liber quintus, wherein it was stated that the conversations between lawyer and client were to be free from external influence or interference. In this way, the client could state all of the facts to his lawyer without concealing any details, and the lawyer could thus prepare the most appropriate line of defense:

Adde quod dato termino defensionis reus debet reduci ad carceres inferiores, idest ad largam, ut possit loqui cum Procuratoribus et Advocatis et ordinare suas defensiones […] ut per Straccham in adnota. ad Cravet. in consil. 35 ubi tamen laudat illos iudices qui aliquo officiali Curiae assistente admittunt defensores rei ad alloquendum, ne instruantur rei et ne occasio detur veritatem occultandi […] Ego autem hoc non approbo quia si libera non est locutio libere non sunt defensiones, nam advocati et procuratores timore illius officialis, seu potius fisci, vel accusatoris exploratoris non audenìbunt dicere omnia quae facerent ad defensionem[29].

In the first half of the sixteenth century, Egidio Bossi had posed the question of whether a lawyer could instruct his client to remain silent if the latter risked capital punishment:

quaero an quando ingeritur poena sanguinis possit advocatus vel causidicus instruere reum ad tacendam veritatem? […] ubi advocatus videt clientem suum fovere iniustam causam, non debet eum docere ut veritatem taceat, imo debet ei consilium dare ut restituat quod indebite tenet, sine scandalo tamen[30].

The objective of a criminal trial at the time was to ascertain the truth, and that required a contribution on the part of the defendant as well. Thus, the defendant was considered a witness, leading Bossi to forbid a lawyer from counseling his client on what answers to give (or not to give) during questioning, because doing so would have amounted to fabricating evidence.

Although it was acknowledged that a defendant would be naturally inclined to lie (this was connected with the principle of nemo tenetur se detegere, which was beginning to be recognized as a natural right of the accused), treatises on the legal profession reaffirmed that a party under questioning could not deny the crimes he committed. Consequently, the lawyer, too, could not build his defense on lies. At most, a lawyer could counsel his client on how to answer questions without admitting to the crime, but without expressly denying it either[31].

7. The accused under questioning: Conflict between the search for truth and the right to counsel.
It must be understood how a lawyer’s position can be reconciled with that of the client, given that the former is bound to respect the truth in accordance with ethical principles, while the latter is not. It would also be interesting to do a comparative study of this issue with common law systems, where the defendant is required to tell the truth if he decides to talk.

Indeed, the relationship between a lawyer and his client in a criminal trial has been the subject of debate since the early modern period. Throughout the nineteenth and twentieth centuries, this issue influenced the debate over whether a defense lawyer was to be barred from assisting his client during questioning[32]. Not only did this represent an attack on the professional values of the legal profession, it also affected the public’s trust (or distrust) of lawyers.

The issue came to the fore in 1970, when the Italian Constitutional Court ruled that a lawyer was finally allowed to counsel his client during questioning. The ruling highlighted the key role played by legal ethics in balancing the search for truth with the right to counsel – indeed, on no other occasion were these two principles more at odds than during questioning[33].

The Constitutional Court’s ruling concerned the constitutionality of article 304 bis of the 1930 Italian Code of Criminal Procedure, which appeared to violate article 24 of the Italian constitution because it barred defense lawyers from assisting their clients during questioning. Specifically, the Constitutional Court ruled on the so-called ‘small reform’ of 1955, which had expanded a defendant’s right to counsel in the investigatory phase of legal proceedings – allowing defense lawyers to assist during the re-enactment of crimes, the gathering of expert evidence, house searches, and eyewitness identification (basically a return to the 1913 Code of Criminal Procedure) – but which continued to bar lawyers from assisting clients during questioning[34].

The Constitutional Court stated that excluding a lawyer in this way was ascribable to the «utter distrust of a defense lawyer’s work», that is the fear that a lawyer could influence a defendant’s statements and thus hinder the search for truth. However, such fear was «in stark contrast with the constitution, which clearly postulates that the right to counsel, far from being a hindrance, is perfectly in line with the aims of justice which a trial seeks to fulfill».

Nonetheless, the Constitutional Court affirmed that an expansion of the powers of a defense lawyer needed to be accompanied by an expansion of their responsibilities as well, so that the right to counsel would not hinder the search for truth during trial. To that end, disciplinary bodies would have to ensure that lawyers respected their ethical duties.

8. Concluding remarks.
The affirmation of these constitutional values only highlights the difficult situation facing a defense lawyer as he seeks to balance conflicting interests during trial. Indeed, on the one hand he must act in the interests of his client, while on the other hand he must contribute to the administration of justice.

The question is: can a defense lawyer do both?

Luigi Ferrajoli has stated that although these values seem to be in conflict, they can actually be compatible thanks to a lawyer’s duty of independence towards both the judge and the client. Indeed, a lawyer is not ‘a conscience for hire’, as Dostoyevsky once wrote[35]. He does not need to comply with his client’s requests if he does not think it appropriate; rather, he must independently make choices of both a technical and non-technical nature regarding how to best carry out the defense, while still respecting the interests of his client[36].

Such choices are often the result of outright dilemmas facing a defense lawyer. Ethical rules provide criteria and limits to deal with these quandaries, but in certain circumstances the lawyer can also rely on his own ethical principles. Thus, legal ethics do not end with the Code of Conduct; on the contrary, as Aldo Caslinuovo once stated, a lawyer must «first and foremost feel it deep inside his soul, in the vibrations of his own conscience»[37].


[*] This is the written version of a lesson held on 11 January 2017; as such, it shall be presented in the same format. The lesson was part of an advanced course entitled Liability, rights and freedom in trials: judges, lawyers and parties organized for the ‘Cesare Beccaria’ Ph.D. Program in Legal Studies at the University of Milan. Various sources were referenced during the lesson, and as such the necessary footnotes shall be included here. For the specific references and details in §§ 1 to 6, please see R. Bianchi Riva, L’avvocato non difenda cause ingiuste. Ricerche sulla deontologia forense in età medievale e moderna. Parte prima. Il medioevo, Milano, 2012; Ead., La coscienza dell’avvocato. La deontologia forense fra diritto e etica in età moderna, Milano, 2015; Ead., Il dovere di verità fra tecniche della difesa e deontologia forense nel medioevo e nell’età moderna / The duty to the truth: defense techniques and legal ethics in the Middle Ages and early modern period, in «Italian Review of Legal History», 1, n. 4. New material can be found in §§ 7 and 8; in particular, the concluding remarks originate from the discussion that followed the lesson. For a bibliography, please see Officium advocati, L. Mayali, A. Padoa Schioppa, D. Simon (edd.), Frankfurt am Main, 2000; Un progetto di ricerca sulla storia dell’avvocatura, G. Alpa, R. Danovi (edd.), Bologna, 2003; Figure del foro lombardo tra XVI e XIX secolo, C. Danusso, C. Storti Storchi (edd.), Milano, 2006; L’arte del difendere. Allegazioni avvocati e storie di vita a Milano tra Sette e Ottocento, M.G. Di Renzo Villata (ed.), Milano, 2006; J.A. Brundage, The Medieval Origins of the Legal Profession. Canonists, Civilians, and Courts, Chicago and London 2008; Avvocati e avvocatura nell’Italia dell’Ottocento, A. Padoa-Schioppa (ed.), Bologna, 2009.

[1] Cod. 1.3.4.

[2] Odofredus, Lectura super Codice, Lugduni, 1552, f. 133rb, n. 3.

[3] Azo, Lectura Codicis, Parisiis 1577, f. 171.

[4] Cynus Pistoriensis, Super Codice et Digesto veteri Lectura, Lugduni, 1547, Comm. in Cod. 3.1.14, f. 94va, n. 3.

[5] Concilium Lugdunense II – 1274, in Conciliorum Oecumenicorum Decreta, J. Alberigo, P. P. Joannou, C. Leonardi, P. Prodi (edd.), Bologna, 1991, p. 324.

[6] Henricus de Segusio, Summa, Lugduni, 1542, f. 155ra, n. 11.

[7] Constitutiones regni Siciliae a Friderico secundo apud Melfiam editae, in quibus leges tam a suis praedecessoribus quam ab ipso antea publicatae concluduntur, in Historia diplomatica Friderici Secundi, J.L.A. Huillard-Breholles (ed.), Paris, 1852-1861, vol. IV, parte I, pp. 1-178 (pp. 62-63).

[8] Lo Statuto di Bergamo del 1331, C. Storti Storchi (ed.), Milano, 1986, p. 107.

[9] Statuto del comune di Lucca dell’anno MCCCVIII, Lucca, 1867, p. 265.

[10] M. de Afflictis, In utriusque Siciliae, Neapolisque Sanctiones, et Constitutiones novissima Praelectio, Venetiis, 1588, f. 208vb, n. 21.

[11] Thomas Aquinas, Summa Theologiae, IIa IIae q. 71 art. 3.

[12] Innocentius IV, Apparatus super V libris Decretalium, Lugduni 1543, Comm. in X 2.1.14, f. 86vb, n. 6.

[13] E. Nazius, Dissertatio de conscientia advocati, Francofurti ad Viadrum, 1683, p. 60, n. 17.

[14] G.P. Ala, Tractatus brevis de advocato, et causidico christiano, Mediolani, 1605, p. 116; P.P. Guazzini, Tractatus moralis ad defensam animarum advocatorum, iudicum, reorum, Venetiis, 1650, p. 23a, n. 23 e ss.

[15] Albericus de Rosate, In Primam Codicis Partem Commentarii, Venetiis, 1586 (rist. anast. Bologna, 1979), Comm. in Cod. 4.3.1, f. 185va, n. 9.

[16] Ala, Tractatus brevis de advocato, cit., p. 58.

[17] de Afflictis, In utriusque Siciliae, Neapolisque Sanctiones, cit., f. 208ra, n. 10.

[18] D. de Soto, De iustitia et iure, Venetiis, 1584, p. 492a.

[19] J.P. Xammar, De officio iudicis et advocati, Barcinonae, 1639, f. 197vb, n. 41.

[20] G. Zanardelli, L’avvocatura. Discorsi (con alcuni inediti), Milano, 2003, p. 166.

[21] Thomas Aquinas, Summa theologiae, IIa IIae q. 71 art. 3.

[22] Statuti di Verona del 1327, S.A. Bianchi, R. Granuzzo (edd.), Roma, 1992, p. 324; V. De Franchis, Decisiones Sacri Regii Consilii Neapoletani, Venetiis, 1616, dec. 222, f. 122v.

[23] Xammar, De officio iudicis et advocato, cit., f. 197va, n. 39.

[24] Gl. insidijs ad Decr. C. 23 q. 2 c. 2

[25] Gl. malignantium ad VI 1. 6. 16.

[26] Ala, Tractatus brevis de advocato, cit., p. 45

[27] Thomas Aquinas, Summa Theologiae, IIa IIae, q. 71 art. 3.

[28] A. Alciatus, De verborum significatione, Francofurti 1617, col. 1044.

[29] G.B. Baiardi, additio ad G. Claro, Liber quintus sive Practica criminalis, Venetiis, 1626, p. 426b, n. 3.

[30] E. Bossi, Tractatus varii, Lugduni, 1562, p. 142a, n. 18

[31] Ala, Tractatus brevis de advocato, cit., pp. 95-96; Xammar, De officio iudicis et advocati, cit., f. 232ra, n. 39

[32] L. Garlati, Silenzio colpevole, silenzio innocente. L’interrogatorio dell’imputato da mezzo di prova a strumento di difesa nell’esperienza giuridica italiana, in Riti, tecniche, interessi. Il processo penale tra Otto e Novecento. Atti del Convegno (Foggia, 5-6 maggio 2006), M.N. Miletti (ed.), Milano, 2006, pp. 265-339.

[33] Corte Cost., 16 dicembre 1970 n. 190.

[34] It should be noted that this expansion of the right to counsel only applied to formal preliminary investigations; see C. Storti, Magistratura e diritto di difesa nell’istruzione penale. Il dibattito sui periodici giuridici (1955-1965), in Diritti individuali e processo penale nell’Italia Repubblicana. Ferrara, 12-13 novembre 2010, D. Negri, M. Pifferi (edd.), Milano, 2011, pp. 179-198.

[35] F. Dostoevskij, I fratelli Karamazov, Milano, 1974, p. 257.

[36] L. Ferrajoli, Sulla deontologia professionale degli avvocati, in «Questione Giustizia», 2011, pp. 90-98.

[37] A. Casalinuovo, Deontologia del difensore, in «Rassegna Forense», 1981, pp. 447-460.

The Duty to the Truth: Defense Techniques and Legal Ethics in The Middle Ages and Early Modern Period

Raffaella Bianchi Riva

Università degli Studi di Milano

raffaella.bianchi@unimi.it

Abstract: During Middle and Early Modern Ages, the lawyer’s duty to the truth was stated within a wider debate about defense techniques, in which two different concepts of the role of the lawyer as acting as a participant in the administration of justice were discussed. The prohibition to give false or misleading information to the court was certain. The matter all concentrated on the limits of legal argumentation, balancing out the protection of his own client’s interests, with particular regards to the respect of professional secrecy, and the cooperation with the judge in the pursuit of the truth.

Keywords: Lawyer; legal ethics; truth; Middle Ages; Early Modern Ages

Table of contents: 1. Ban on defending unjust causes and ban on resorting to unjust means to defend a cause.1.1. Medieval premises: the debate between canonists and theologians.1.2. The early modern period: lawyers and the fine line between cavillationes and falsitates.2. The ban on producing false evidence or using false statements in legal proceedings.3. Legal argumentation: the fine line between the art of rhetoric and lying.4. Towards a duty to the truth: the lawyer and his party during trial.4.1. Educating causidici about the truth: criticism of the legal profession.4.2. Defense lawyers and the pursuit of the truth in old-regime criminal.5. Balancing the duty to the truth with protection of a client’s interests: an issue still open to debate.

1. Ban on defending unjust causes and ban on resorting to unjust means to defend a cause.

1.1. Medieval premises: the debate between canonists and theologians.

«Ad iustitiam causae pertinet etiam modus, unde non solum Advocatus, antequam suscipiat causas debet advertere, si sit iusta, et nullis iniustis condictionibus coniuncta, sed etiam in progressu ipsius causae debet summopere pro defensione suae animae cavere, ne iniustus modus aliqua ratione interveniat»[1].

In the middle of the seventeenth century, the theologian Pietro Paolo Guazzini expressed the principle cited above in his Tractatus moralis ad defensam animarum advocatorum, iudicum, reorum. It was a widely shared ethic in the early modern period, and indeed it is still very much alive in the present day: it held that a lawyer was to actively participate in the administration of justice[2], meaning that he had an obligation to avoid defending unjust causes[3], as well as to conduct himself during trial in accordance with what the code of conduct for Italian lawyers today defines as a duty to the truth[4].

In the Middle Ages, jurists and theologians conceived of what is today described as a duty to the truth as a ban on resorting to unjust means to defend a cause. Just like the ban on defending an unjust cause, this concept was divided into various rules, the basis of which remained consistent into the early modern period[5]: namely, the oath de calumnia that Justinian had required patroni causarum to take under his constitution rem non novam[6]. At times, these rules had also been expressed in the wording of oaths formulated under canon law and local law[7].

The ban on defending unjust causes had been the result of careful reflection on the professional oath a lawyer was to take; on the contrary, the ban on using unjust means to defend a cause had been the result of a wide-ranging debate revolving around defense techniques. This discussion had led to two opposing views on the role of the legal profession in the administration of justice: on the one hand, there was the opinion that a lawyer could resort to any means necessary to defend his client if it was a just cause; on the other hand, there was the conviction that resorting to such means was absolutely forbidden when it meant being dishonest to attain justice.

There was a passage in the Decretum that allowed anyone who was fighting a just war to resort to deception and ambush[8]. In keeping with the traditional portrayal of lawyers as milites[9], the provisions of the canon dominus could be analogously applied to legal defense, and the ordinary gloss on the Decretum had established that a lawyer could legitimately «decipere adversarium suum»[10] if he was defending a just cause.

This view had then been reaffirmed by the gloss on the decretal cupientes, which was contained in the Liber Sextus: he who was on the side of a just cause could react to the cavillationes and malitiae of his opponent by resorting to the same means, thanks to the principle of equality of arms in legal proceedings[11].

Thus, the need to have justice prevail would have justified even the most audacious of defensive tactics. But just how far could a lawyer have pushed his cunning? For example, could he have asserted factual circumstances that did not correspond to reality, or produced false documents or false witnesses? Or would he have had to limit himself to providing a partial account of the facts or an incomplete description of what legal doctrine had to say about the issue?

The gloss on the decretal cupientes had re-evaluated the possibility to resort to insidiae, as permitted by the gloss on the canondominus: indeed, it held that legal sophistry was acceptable, but resorting to falsehoods was not[12]. This ban on using falsehoods in legal proceedings would eventually become a cornerstone of the ius commune, and no one would dare question it, at least not openly.

Nonetheless, in what was perhaps more than a coincidence, legal doctrine would come to misinterpret the meaning of the two glosses: as such, the only part that would be passed down was that which allowed a lawyer to ‘deceive’ his opponent, while the opinion of St. Thomas would be help up in contrast, as it established more restrictive limits on how to carry out a defense.

Indeed, Thomas Aquinas had specifically forbidden a lawyer from using fraudulent falsehoods. Once again, he had made reference to the analogy between the military ordo and the legal profession: just as it would have been lawful for a soldier or general fighting a just war to resort to subterfuge and ambush, by prudently concealing his strategies, so too could a lawyer defending a just cause conceal that which might hinder his client’s case, or that which might be favorable to his opponent[13]. Saint Augustine, too, had drawn a distinction between stating falsehoods and concealing the truth[14], which would later be adopted by the Decretum: according to him, the ban on using unjust means to defend a cause did not include an obligation to produce evidence that would be disadvantageous to one’s own client. As Pietro Paolo Guazzini would point out, remaining silent would come to be associated with shrewd strategy[15]. Hence, a lawyer’s only weapon for fighting the unfounded claims of an opponent was to knowingly omit information.

In both the theological and canonical theories, the entire issue came down to the not-always-clear distinction between silence, half-truths and falsehoods.

In formulating the cautelae advocatorum, the ordines iudiciarii had already highlighted the need to distinguish between lying, which was strictly forbidden, and sophistry, which was seen in the same light as dolus bonus. As a matter of fact, in the middle of the thirteenth century Bonaguida d’Arezzo had advised legal professionals not to lie in court, but rather to show off their eloquence[16]. From this perspective, a defender was not to make use of falsitates, even if it seemed to be the only way to counter the unfounded claims of his opponent; on the contrary, he was to resort to cavillationes, and ultimately, to rely solely upon his own rhetorical prowess.

Some canonists thought it wiser to adopt the teachings of Thomas Aquinas, as they were aware of the fine line between sophistry and lying. For example, Antonius de Budrio had declared his preference for the theological viewpoint over what he felt was an excessively liberal opinion based on the glosses on corpus iuris canonici[17].

Alberico de Rosate, however, had reached the same conclusion as that of the two glosses, even though it went against the severe criticism he had sometimes reserved for the legal profession. The experience he had gained in court had prompted him to perform an exegetic reading of the constitution rem non novam, and this in turn had probably led him to believe that a favorable outcome to a dispute would have justified any expedient that the defender might have resorted to in order to win the case[18].

1.2. The early modern period: lawyers and the fine line between cavillationes and falsitates.

Medieval and modern-age jurisprudence had no qualms about embracing the opinion that a lawyer defending a just cause could mislead his opponent[19].

Between the fourteenth and sixteenth centuries, the compendiums of law and theology known as summae confessorum attempted to find a balance between Saint Thomas’s theory – which was unequivocal in banning the use of falsehoods during a trial – and that of the glosses on the Decretum and Liber Sextus, which, as shown above, had taken on a certain meaning in subsequent legal tradition. Thus, lawyers were permitted to use «cavillationes et malitias», «dummodo non opponant falsas allegationes»[20].

This meeting of the legal and theological traditions was fertile terrain for the legal treatises circulating in Europe between the sixteenth and seventeenth centuries, which called for greater responsibility in the employment of defense techniques and reaffirmed a ban on «mentiri vel falsitate uti». The idea was to curb a lack of restraint on the part of the members of the legal profession; to make them aware of the inherent risks in taking too many liberties when arguing their case. Nonetheless, this concept did not exclude the possibility of using this kind of argumentation to their advantage.

For example, the above-mentioned Pietro Paolo Guazzini approved of the use of deceit, as long as it did not turn into lying[21]. And in his De officio iudicis et advocati liber unus, the Catalan Juan Pablo Xammar also allowed a lawyer to deceive his opponent «arte et dolo, id est solertia, dilationibus, et subterfugijs ac fallacijs», though he urged caution in interpreting the two glosses[22]. Only the Castilian lawyer Melchor Cabrera Nuñez de Guzman returned to the original meaning of the canonical texts in his Idea de un abogado perfecto: thus, he permitted a lawyer to defend by resorting to «stratagema util a su parte», in accordance with the gloss on the canon dominus, but not to falsehoods, as asserted in the gloss on the decretal cupientes[23].

On the other hand, the Cremona-born Giovanni Pietro Ala, writing in his Tractatus brevis de advocato et causidico christiano, felt that it was wiser to subscribe to Saint Thomas’s theory that «ne falsitate, aut mendacio adiuvent causam»[24]. Ephraim Nazius also repudiated the canonical gloss in a dissertation on the conscientia advocati directed by Samuel Stryk. In fact, he denied the basis of the gloss itself, namely that war and litigation were analogous, on the grounds that, contrary to parties in court, «belligerantes […] Judicem superiorem non habent, qui motam discordiam componat»[25]. Nonetheless, Stryk permitted the use of rhetoric to a far greater extent than the strict limits that Thomas Aquinas appeared to have imposed on it.

Judging from how much early modern treatises reiterated the ban on resorting to fraudulent falsehoods during legal proceedings, the ban must have been frequently disregarded; so much so that a need arose to formulate rules of conduct, the aim of which was to help define the legal profession’s cooperative role in the administration of justice, while at the same time restoring dignity to the profession itself.

2. The ban on producing false evidence or using false statements in legal proceedings.

As mentioned above, the ban on resorting to unjust means to defend a cause was divided into distinct and independent rules, each of which had been specifically cited in past works on legal procedure, and especially in thirteenth-century textbooks de instructione advocatorum[26].

First and foremost, a lawyer was to do his part to achieve the truth – which indeed was the goal of the entire justice system – by refraining from fabricating events or producing false evidence. Writing in the middle of the fifteenth century, the Sienese jurist Giovanni Battista Caccialupi summed up as much in his De advocatis: such conduct would have posed a “danger” from which a legal professional «debet omni providentia cum diligentia se tutum reddere»[27].

This rule was based on the teachings of Guillaume Durand’s Speculum iudiciale.

If a lawyer had produced an untruthful instrumentum, he would have been punished for forgery[28], unless he was able to demonstrate that he had been unaware of the falsity of the document. For this reason, lawyers were urged to check that the documents provided by their clients had not been altered in any way, especially if they harbored any doubts in that regard[29].

A lawyer was also not allowed to suborn false witnesses to commit perjury[30]. Ugolino da Sesso had pointed out that consulting with a witness simply to find out what he knew did not constitute a violation of this rule[31]. Nonetheless, Bonaguida d’Arezzo had advised defense lawyers not to speak with witnesses before their deposition[32], in order to avoid what Uberto da Bobbio had described as shameful and dishonorable accusations[33]. Indeed, false testimony was considered a very serious crime, so much so that Hostiensis – who had claimed that it was one of the most widely-used practices in court – had maintained that any lawyer guilty thereof should be disgraced and punished on the same level as a murderer[34].

The practice of resorting to false witnesses must have become a very frequent occurrence during the early modern period, though there were some exceptions, as proudly recounted by Pietro Paolo Guazzini: indeed, he boasted of the fact that his father, the jurist Sebastiano Guazzini, had never approached a witness before his examination[35]. According to Giovanni Pietro Ala, these crimes were committed mainly in defense of the accused[36], and specifically through an agreement between the lawyer and the notary in charge of recording depositions, whereby the latter would not administer the oath to the witnesses and thus allow them to lie «alacri animo». In that regard, Ala pointed out that even though the false deposition often resulted in the accused not being sentenced, it still obstructed the course of justice, and as such it would not have exempted the witness, the lawyer or the notary from being charged with making false statements and/or perjury[37].

3. Legal argumentation: the fine line between the art of rhetoric and lying.

The ban on resorting to unjust means to defend a cause was not only to be observed during the preliminary inquiry, but also during the closing arguments that followed[38]. Guillaume Durand had cautioned defense lawyers against producing «falsam legem vel canonem, cuius auctor ignoratur, vel abrogatam»[39], or resorting to strained interpretations of the rules[40]. Once again, in this case a lawyer could be charged with making false statements[41].

What’s more, refraining from false argumentation was simply in the lawyer’s best interests. The German Bartholomaeus Agricola, who penned a relectio of the lex advocati, highlighted how recourse to unfounded arguments could weaken the defense and thereby jeopardize a client’s case: not only would the lawyers lose credibility in the eyes of the magistrates[42], but also in what today we would call the ‘court of public opinion’, as pointed out in a treatise by the Frisian lawyer Jacob Bouricius[43].

While it was agreed that false statements were to be banned, wide use of legal rhetoric was nonetheless permitted, so that a lawyer could make a more convincing case when defending; this was in keeping with a tradition that could be traced back to Bonaguida da Arezzo. Tiberio Deciani openly embraced malitiae, fraudes and cavillationes, «si aliter facere non potest», and seemed to justify the use of any means that the defense deemed convenient[44]. On the other hand, it is worth noting that Guazzini saw the art of rhetoric as a lawyer’s last resort when trying to save the life of a client who was on trial for a crime that was punishable by deat[45].

As affirmed by the summae confessorum, a lawyer would be able to conceal the “weak points” of his defense strategy by resorting to ambiguous expressions[46] or «hiperboles et exagerationes»[47].

Not only was a lawyer allowed to keep inconvenient truths from coming out, he was also allowed to use smoke and mirrors to make his case. Drawing on canonical tradition[48], legal treatises permitted lawyers to embellish their defense with «colorata et persuasiva»[49]. It had been observed that when delivering their sentences, judges frequently cited reasons that were ostensibly well-founded[50], yet in reality irrelevant or immaterial to the case. This had led jurists to permit lawyers to use a form of argumentation that could convince a judge to decide in favor of their clients, even if it was not entirely germane to the quaestio iuris being disputed – especially if the judge was not well-educated, as Panormitano had made clear[51].

Though there was no doubting the importance of the methods of argumentation used to persuade judges, lawyers were nonetheless cautioned against crossing the line that separated rhetorical artifice from lying[52]. Indeed, they were to carry out their defense within well-defined boundaries: respect for their client’s interests on the one hand, respect for justice on the other.

4. Towards a duty to the truth: the lawyer and his party during trial.

4.1. Educating causidici about the truth: criticism of the legal profession.

The truth is an ineliminable feature of the relationship between a lawyer and his client: it is the premise of trust upon which that relationship is based. In that regard, it is important to remember that according to the Decretum[53], a lawyer was on an equal footing with a doctor or a confessor[54].

Procedure in the ius commune required a litigant to tell the truth during trial: if a party was personally summoned to make statements during any part of the legal procedure, he was considered a witness and required to take an oath. As Alberico de Rosate had pointed out, equating the duties of a litigant with those of a witness meant that the defender could not counsel his client to make false statements; on the contrary, he was to exhort him to answer without denying the facts or fabricating events[55].

Thus, a lawyer’s duty to the truth arose out of the analogous duty that a party was to respect during trial, and it came to include a lawyer’s conduct as well: hence the ban on resorting to unjust means to defend a cause.

Starting in the thirteenth century, special attention had been dedicated to positiones[56]. Members of the legal profession had been considered a cunning bunch: so much so that they were reputed to be willing to abet their clients in coming up with false statements or answers just to win a case, and in that way obtain fame and fortune. The ordinary gloss on the decretal statuimus had addressed this by denouncing the habit by which lawyers only warned their clients of the immediate consequences of their statements, while ignoring the spiritual[57] consequences thereof. In keeping with a practice that had been observed in other courts of law, the gloss had thought it more prudent to remove defense lawyers from the courtroom so as to avoid influencing their clients[58].

In the early modern period, the debate surrounding the legal profession was fueled even further by procuratores and solicitatores who illicitly defended clients without the educational qualifications required of lawyers[59]. Giovanni Pietro Ala attempted to restore prestige to jurists who held university degrees by holding underqualified practitioners responsible for the violation of professional norms: to that end, he attributed the infiniti errores committed in the Court of Cremona – «in responsione ad positiones partis contrariae» – to the slyness and negligence of causidici. According to Ala, the procuratores who took on the defense of cases without a lawyer’s assistance would frequently counsel their clients to deny the facts, if they did not do it themselves when summoned to act in nomine clientis. In particular, causidici were known to routinely dispute the content of documents that they themselves had drawn up in their capacity as notaries: not only did they not want to corroborate their opponent’s case with their own statements, but above all, this would force the parties who had to fulfill the burden of proof to pay the notarial fees needed to obtain certified copies of the documents[60].

4.2. Defense lawyers and the pursuit of the truth in old-regime criminal trials

In their treatises, jurists put a great deal of emphasis on the principle of truth in criminal proceedings, and reference was made to both the lawyer and to the party he represented. The idea was to outline a set of rules that could suit both accusatorial and inquisitorial procedures, but more so the latter: indeed, it was here where the truth was held by the defendant alone, and it is a well-known fact that even torture was justified to have the truth come out[61]. There is no doubt that these early modern treatises were also referring to the inquisitorial system – widely practiced in old-regime courts – despite the fact that the defender had very little room for maneuver, which in turn meant that the defendant usually did not have a chance to consult his lawyer during questioning[62]. As is common knowledge, it was only after the publicatio that a defendant could consult his lawyer in order to agree upon a defense strategy. Criminal law scholars had debated over the possibility of having a court official be present during examination, «ne instruantur rei et ne occasio detur veritatem occultandi». This issue was also addressed by the additio to Claro’s Liber quintus, which stated the opposite, namely that the conversations between lawyer and client were to be free from external influence or interference: in this way, the defendant could state all of the facts to his lawyer without concealing any details that would help prepare the best defense possible[63]. In any case, the ban on lying was still wholly in force, though some recognized that the accused were naturally inclined to resort to it nonetheless, especially because they knew there were inherent flaws in the judicial system when it came to establishing the truth. Indeed, this same logic had led Gerolamo Cardano to advise defendants to use every trick in the book to get out of a trial unscathed, after his son Giovanni Battista fell victim to a miscarriage of justice and was sentenced to death for poisoning in 1560[64].

Even so, Egidio Bossi observed that a lawyer could not instruct a client to conceal the truth[65]. On the other hand, Giovanni Pietro Ala told of how advocati and causidici, with a guilty conscience, would often counsel their clients to deny the accusations against them. In any case, Ala was of the opinion – which would later be shared by Xammar – that a distinction had to be made: if the magistrate had proceeded to examine the accused on the grounds of legitimi inditii, then the latter would have been duty-bound to respond truthfully; otherwise, the person under investigation would not have been obligated to confess. Nevertheless, this did not imply that the accused could lie, but only that he could evade the judge’s questions by providing elusive answers[66]. And this was exactly the case in which a lawyer’s experience could prove useful to a defendant, by providing shrewd answers that neither aggravated the charges against him, nor denied the alleged facts. Indeed, a lawyer could neither counsel his client to lie, nor to remain silent, as silence was not an option in old-regime trials[67]: the most he could do was instruct the defendant on how to navigate the judge’s questions without contradicting himself.

Though the principle of nemo tenetur se detegere was beginning to be recognized as a natural right of the accused, it did not encroach upon the duty to the truth as expressed in treatises on the legal profession.

According to Samuel Pufendorf, a lawyer in a civil case could not object to his opponent with «simulationes, falsas allegationes, fictas rationes et dilatorias exceptiones»; in a criminal trial for violent crime, however, the lawyer would be allowed to resort to any means of defense that the accused was permitted to use. The natural law expert from Germany believed that it would not be the defense lawyer’s powers that hindered the correct administration of justice, but that on the contrary, any miscarriages of justices would fall under the exclusive responsibility of the judge[68].

Although Pufendorf’s distinction only referred to the type of argumentation used in court, Stryk was critical of it. The latter reaffirmed his stance that generally speaking, a party under examination could not deny the crimes he committed «salva conscientia»; consequently, the lawyer, too, could not build his defense on lies. While it was acknowledged that a defendant would be naturally inclined to deny having committed a crime, Stryk reiterated that there was indeed a legal obligation to respond truthfully, in addition to a moral duty to do so. This derived from the fact that evidence would have to be provided by the offender himself if he was to be promptly and effectively prosecuted, especially «in an inquisitorial procedure, which relied on, and anxiously strove to obtain, the defendant’s testimony»[69].

For that reason, Stryk’s conclusions were the opposite of Pufendorf’s. Nonetheless, both opinions were influenced by the fact that criminal defense lawyers carried little weight in old-regime systems. In that regard, Pufendorf actually permitted defense counsel under the assumption that it would have had no bearing on the verdict, while Stryk felt that it should be excluded from trial, because it risked getting in the way of the justice system[70]. In both cases, it was the judge’s responsibility to establish the truth: indeed, up until the nineteenth century, the prevailing theory held that a judge was required to search for evidence not just against the defendant, but in his favor as well[71].

5. Balancing the duty to the truth with protection of a client’s interests: an issue still open to debate

Over the course of the Middle Ages and the early modern period, the duty to the truth progressively replaced the ban on resorting to unjust means to defend a cause, and it came to absorb the rules that had been laid out by jurists and theologians in the age-old debate over defense techniques. Legal doctrine had shaped the duty to the truth – and everything it entailed – in the same way as the duty of a litigant, to the point where it was even able to account for a client’s natural instinct to lie. The duty to the truth was a fundamental part of criminal procedure in the ius commune up until the establishment of the opposite principle, from which there would be no going back: namely, that no one could be testis contra se. The right to remain silent and the controversial right to lie – which was an extreme way of safeguarding the defendant’s rights during the initial interrogation, and which arose out of liberal criminal doctrine in the nineteenth century[72] – led to a change in how a lawyer’s role during trial was conceived: he was no longer expected to work with the judge in pursuit of the truth or in making sure that justice was served[73].

Today, the duty to the truth is set forth in article 50 of the Code of Conduct for Italian Lawyers. A similar duty is laid down in article 4.4 of the Code of Conduct for European Lawyers.

Nonetheless, the litigant and the defense lawyer are not obligated to tell the truth in the context of a trial. Indeed, article 88 of the Italian code of civil procedure only obliges the parties and defenders to respect a duty of loyalty and honesty[74], while article 99 of the Italian code of criminal procedure states that the defender is vested with the same powers and rights that the law grants defendants.

Some believe that there is a disconnect between the duty to the truth and the duty to defend a client, and that it is to be found in those above-mentioned powers and rights. If the rights of the defense lawyer blur with those of the parties[75], can a lawyer really be allowed to lie? In short, even the legal profession itself has realized that it is time to reflect on the conduct of lawyers during trial and how that relates to the legal standing of the parties involved, and that comparisons should also be drawn with common law systems. In that regard, it has been highlighted that if a lawyer during trial cannot assert the truth of facts that are detrimental to the interests he has been entrusted with, then neither can he assert falsehoods, as his role also carries a myriad of duties that go beyond the individual interests of the lawyer-client relationship. Indeed, said duties force him to consider the consequences of his actions on other individuals and on society as well[76], in accordance with his “dual loyalty” towards the client and towards the legal system, as set forth in the code of conduct for Italian lawyers.

Thus, the duty to the truth must be harmonized with the duties of loyalty and confidentiality[77], which mainly have to do with protecting the interests of a client. The lawyer’s role in this delicate balance of values is to do his part to get the truth to come out in the courtroom: in an inquisitorial trial, that means searching for an absolute truth; in an accusatorial trial, it means reconstructing a probable truth[78].

________________________
[1] P.P. Guazzini, Tractatus moralis ad defensam animarum advocatorum, iudicum, reorum, Venetiis, 1650, p. 38b, n. 1.

[2] For a classic piece on the idea of the legal profession as a fundamental element of the legal system, see P. Calamandrei,L’avvocatura nella riforma del processo civile, in Id., Opere giuridiche, M. Cappelletti (ed.), vol. II, Magistratura, Avvocatura, studio e insegnamento del diritto, Napoli, 1966, pp. 12-64 (especially p. 31), and Id., Troppi avvocati , ibid., pp. 69-194 (especially pp. 69-71).

[3] On the subject of the ban on defending unjust causes and on the elaboration of the concept of causa iniusta in the Middle Ages, see R. Bianchi Riva, L’avvocato non difenda cause ingiuste. Ricerche sulla deontologia forense in età medievale e moderna. Parte prima, Il medioevo, Milano, 2012.

[4] Art. 50 of the code of conduct for Italian lawyers. In addition, see R. Danovi, Dovere di verità e dovere di lealtà nella deontologia forense, in Id., Saggi sulla deontologia, Milano, 1987, pp. 95-104.

[5] B. Agricola, Advocatus, sive de qualitatibus et officio boni advocati, Neapoli Nemetum, 1647, p. 105.

[6] The oath’s wording evoked the values of truth and justice, see Cod. 3, 1, 14, 4 (1), de iudiciis l. rem non novam §patroni. On iuramentum de calumnia by Justinian, see also N. Sarti, Maximum dirimendarum causarum remedium. Il giuramento di calunnia nella dottrina civilistica dei secoli XI-XIII, Milano, 1995. On the subject of the professional oath taken by lawyers and its use in practice, see Bianchi Riva, L’avvocato non difenda cause ingiuste (nt. 3), pp. 9-42, 52-77.

[7] I refer to the ban on making false statements, producing false evidence, suborning false witnesses, and suborning clients; seeSacrorum conciliorum nova et amplissima collectio, J. Mansi (ed.), vol. 23, Graz, 1961, coll. 218-219, 240-241;Constitutiones regni Siciliae tum Melfienses, tum quae postea diversis temporibus a Friderico secundo editae fuerunt, in Historia diplomatica Friderici Secundi, J.L.A. Huillard-Breholles (ed.), Paris, 1854, vol. IV, part I, pp. 62-63.

[8] Decr. C. 23 q. 2 c. 2, dominus.

[9] Cod. 2, 7, 14, de advocatis diversorum iudiciorum l. advocati. On the definition of lawyers as soldiers, see V. Piergiovanni,Tra difesa e consulenza: tipologie professionali degli avvocati nelle società di antico regime, in Un progetto di ricerca sulla storia dell’avvocatura, G. Alpa, R. Danovi (ed.), Bologna, 2003, pp. 69-79 (especially pp. 70-71).

[10] Gl. insidijs ad Decr. C. 23 q. 2 c. 2, dominus. On this subject, see S. Di Noto Marrella, L’avvocato in un trattatista del tardo Cinquecento, in A Ennio Cortese, tome I, Roma, 2001, pp. 436-454 (especially p. 442).

[11] Gl. malignantium ad VI, 1, 6, 16, de electione et electi potestate c. cupientes. On the principle of equality of both parties, see C. Storti, “Aequalitas servanda est in iudiciis”. Il principio di uguaglianza delle parti nel processo del diritto comune classico, in «Rivista internazionale dei diritti dell’uomo», 5 (1991), pp. 58-81.

[12] Cf. gl. malignantium ad VI, 1, 6, 16, de electione et electi potestate c. cupientes.

[13] Thomas of Aquinas, Summa Theologiae, IIa IIae, q. 71 art. 3.

[14] Decr. C. 22, q. 2, c. 14, ne quis.

[15] Cf. Guazzini, Tractatus moralis (nt. 1), p. 38b, n. 2.

[16] Bonaguida d’Arezzo, Summa introductoria super officio advocationis in foro ecclesiae, in Anecdota quae processum civilem spectant , A. Wunderlich (ed.), Gottingae, 1841, pp. 121-345 (especially p. 158).

[17] Antonio de Budrio, Lectura super Quarto Decretalium, 1532, Lectura super X, 4, 17, 12, qui filii sint legitimi c. per tuas, f. 49ra, n. 20.

[18] Alberico de Rosate, In Primam Codicis partem Commentarii, Venetiis, 1586 (anastatic reprint Bologna, 1979), Comm. in Cod. 3, 1, 14, de iudiciis l. rem non novam, n. 4-5. On this subject, see Bianchi Riva, L’avvocato non difenda cause ingiuste (nt. 3), pp. 75-76.

[19] See A. Alciato, Opera omnia, tomo II, In Pandectarum seu Digestorum Iuris civilis septimae partis titulos aliquot Commentaria, Francofurti, 1617, col. 1045, n. 11. This tactic was also accepted by the Reichskammergericht, cf. A. Gaill, J. Mynsinger, Observationes practicae Imperialis Camerae, Augustæ Taurinorum, 1609, lib. II, obs. VI, f. 337vb, n. 1.

[20] S. Mazzolini, Summa Sylvestrina quae summa summarum merito nuncupatur, Venetiis, 1581, pars prima, v. Advocatus, f. 27ra, n. 6; A. Carletti, Summa Angelica de casibus conscientialibus, Venetiis, 1578, v. Advocatus, f. 31va, n. 10. On the literary genre of summae confessorum, see lastly M.G. Di Renzo Villata,L’iniuria entre religion morale et droit dans les sommes de casuistique italiennes du XIVe-XVIe siècle. Quelques remarques, in L’offense. Du «torrent de boue» à l’offense au chef de l’État, J. Hoareau-Dodineau, G. Métairie (ed.), Limonges, 2010, pp. 201-223.

[21] Guazzini, Tractatus moralis (nt. 1), p. 38b, n. 1 e ss.

[22] J.P. Xammar, De officio iudicis et advocati, Barcinonae, 1639, f. 229rb, n. 6.

[23] M. Cabrera Nuñez de Guzman, Idea de un abogado perfecto, Madrid, 1683, p. 168.

[24] G.P. Ala, Tractatus brevis de advocato, et causidico christiano, in duas partes divisus, Mediolani, 1605, p. 43.

[25] E. Nazius, Dissertatio de conscientia advocati […] in Academia Viadrina praeside dn. Samuele Strikio […] Ad diem 21 April. Anno 1677 […] , Francofurti ad Viadrum, 1683, p. 51, n. 62 e s.

[26] On the genre of books de instructione advocatortum, see N. Sarti, Un giurista tra Azzone e Accursio. Iacopo di Balduino (…1210-1235) e il suo “Libellus instructionis advocatorum”, Milano, 1990, and lastly, N. Sarti, S. Bordini, L’avvocato medievale tra mestiere e scienza giuridica. Il Liber cautele et doctrine di Uberto da Bobbio (…1211-1245), Bologna, 2010.

[27] G.B. Caccialupi, De Advocatis, in Tractatus universi iuris, tome III, De Iudiciis, part I, Venetiis, 1584, ff. 359vb-362ra (especially f. 361ra, n. 10). On the relationship between evidence and the search for the truth, see A. Giuliani,Il concetto di prova. Contributo alla logica giuridica, Milano, 1961; G. Ubertis,Fatto e valore nel sistema probatorio penale, Milano, 1979; Id., La ricerca della verità giudiziale, in La conoscenza del fatto nel processo penale, Id. (ed.), Milano, 1992, pp. 1-38.

[28] On crimen falsi, see G.P. Massetto, I reati nell’opera di Giulio Claro, in Id., Saggi di storia del diritto penale lombardo (secc. XVI-XVIII), Milano, 1994, pp. 61-227 (especially pp. 121-123).

[29] Guillaume Durand, Speculum iuris, Augustae Taurinorum, 1578, pars prima, f. 118va, n. 8.

[30] Ibid., n. 12. Cf. art. 377 of the Italian Criminal Code and art. 55 of the code of conduct for Italian lawyers.

[31] Ugolino da Sesso, Tractatus de testibus, Barcelona, Archivio de la Corona de Aragon, ms. S. Cugat 55, f. 144ra. The manuscript is published in Tres lecciones del siglo XII del estudio general de Palencia, in «Anuario de historia del derecho español», 60 (1991), pp. 391-449 (especially p. 444). The treatise by Ugolino da Sesso was the subject of A. Bassani’s speech entitledThe Tractatus de testibus by Ugolino da Sesso, delivered at the 14th International Congress of Medieval Canon Law (Toronto, 5-11 August, 2012).

[32] Bonaguida d’Arezzo, Summa introductoria super officio advocationis (nt. 16), p. 158. On the relationship between lawyer and witness, see D. Carponi Schittar, La menzogna nel processo. Non dire falsa testimonianza, Milano, 2004, pp. 105-134.

[33] The Liber cautelae et doctrinae by Uberto da Bobbio is published in Sarti, Bordini, L’avvocato medievale tra mestiere e scienza giuridica (nt. 26), pp. 203-350 (especially p. 212).

[34] Henry of Segusio, Summa, Lugduni, 1542, f. 275ra, n. 32.

[35] Guazzini, Tractatus moralis (nt. 1), p. 39a, n. 4.

[36] Ala, Tractatus brevis de advocato (nt. 24), p. 98.

[37] Ala, Tractatus brevis de advocato (nt. 24), p. 100.

[38] On the relationship between legal argumentation and the professional oath taken by lawyers, see Bianchi Riva,L’avvocato non difenda cause ingiuste (nt. 3), pp. 41-42. On the subject, see also L’arte del difendere. Allegazioni avvocati e storie di vita a Milano tra Sette e Ottocento, M.G. Di Renzo Villata (ed.), Milano, 2006. Lastly, see also F. Procchi, Verità e verosimiglianza nelle argomentazioni del difensore, in L’argomentazione e il metodo nella difesa, A. Mariani Marini, F. Procchi (ed.), Pisa, 2004, pp. 75-84.

[39] Guillaume Durand, Speculum iuris (nt. 29), pars prima, f. 118va, n. 9.

[40] Ibid., n. 10. See also additio ad Cino da Pistoia, Super Codice et Digesto veteri lectura, Lugduni, 1547, Lectura super Cod. 2, 58 (59), 1, de iureiurando propter calumniam dando l. in omnibus, f. 86rb; Alberico de Rosate (nt. 18), Comm. in Cod. 3, 1, 14, de iudiciis l. rem non novam, f. 139ra, n. 1.

[41] Guillaume Durand, Speculum iuris (nt. 29), pars prima, f. 118va, n. 10. Cf. Massetto , I reati nell’opera di Giulio Claro (nt. 28), pp. 116-127.

[42] Agricola, Advocatus (nt. 5), p. 105.

[43] J. Bouricius, Advocatus, Leovardiae, 1650, p. 13.

[44] T. Deciani, Tractatus criminalis, Augustae Taurinorum, 1593, tome I, f. 6ra, n. 18.

[45] Guazzini, Tractatus moralis (nt. 1), p. 40a, n. 10; Xammar, De officio iudicis et advocati (nt. 22), f. 229rb, n. 4.

[46] See the examples presented by Mazzolini, Summa Sylvestrina (nt. 20), pars secunda, v. Mendacium, f. 174ra, n. 6.

[47] Guazzini, Tractatus moralis (nt. 1), p. 40a. See also Xammar, De officio iudicis et advocati (nt. 22), f. 229rb, n. 5.

[48] Johannes Andrea, In Quartum Decretalium librum Novella Commentaria, Venetiis, 1581, Comm. in X, 4, 17, 12,qui filii sint legitimi c. per tuas, f. 57va, n. 7; Peter of Ancarano, Lectura aurea ac pene divina super Quarto et Quinti libro Decretalium, 1535, Lectura super X, 4, 17, 12, qui filii sint legitimi c. per tuas, f. 41ra, n. 10; Nicolò de’ Tudeschi, In Quartum et Quintum decretalium lib. Interpretationes, Lugduni, 1547, Comm. in X, 4, 17, 12, qui filii sint legitimi c. per tuas, f. 51vb, n. 6; Antonio de Budrio (nt. 17) Lectura super X, 4, 17, 12, qui filii sint legitimi c. per tuas, f. 49ra, n. 19.

[49] Ala, Tractatus brevis de advocato (nt. 24), p. 45

[50] Ibid.; Xammar, De officio iudicis et advocati (nt. 22), f. 229va, n. 8.

[51] Nicolò de’ Tudeschi (nt. 48), Comm. in X, 4, 17, 12, qui filii sint legitimi c. per tuas, f. 51vb, n. 6.

[52] Xammar, De officio iudicis et advocati (nt. 22), f. 229va, n. 8. On legal rhetoric, see B. Mortara Garavelli, L’oratoria forense: tradizioni e regole, in L’avvocato e il processo. Le tecniche della difesa, A. Mariani Marini, M. Paganelli (ed.), Milano, 2003, pp. 69-92; L’argomentazione e il metodo nella difesa (nt. 38);Ragionare in giudizio. Gli argomenti dell’avvocato, U. Vincenti, A. Mariani Marini, F. Cavalla (ed.), Pisa, 2004; Retorica e deontologia forense, M. Manzin, P. Moro (ed.), Milano, 2010.

[53] Decr. C. 22 q. 2 c. 9, cum humilitatis; Decr. D. 6 c. 1, testamentum.

[54] Guillaume Durand, Speculum iuris (nt. 29), pars prima, f. 111vb, n. 2.

[55] Alberico de Rosate (nt. 18), Proemium, f. 2vb, n. 17. Jurists also deduced that witnesses could be submitted to torture, based on the fact that party and witness were of equal status, in L. Garlati, Il “grande assurdo”: la tortura del testimone nelle pratiche d’età moderna, in «Acta Histriae», 19 (2011), pp. 81-104.

[56] On the positio and the fundamental importance of a confession in a civil trial, see Giuliani, Il concetto di prova. (nt. 27), pp. 169-174; M. Cappelletti, La testimonianza della parte nel sistema dell’oralità. Contributo alla teoria della utilizzazione probatoria del sapere delle parti nel processo civile. Parte prima , Milano, 1962. On a confession as evidence in old-regime trials, see P. Fiorelli, voce Confessione (storia), inEnciclopedia del diritto, vol. VIII, Milano, 1961, pp. 864-870; I. Rosoni, Quae singula non prosunt, collecta iuvant. La teoria della prova indiziaria nell’età medievale e moderna, Milano, 1995, pp. 75-76.

[57] Cf. gl. statuimus ad VI, 2, 9, 1, de confessis c. statuimus.

[58] See also G. Cagnazzo, Summa Tabiena, quae summa summarum merito appellatur, Venetiis, 1580, pars prima, v. Advocatus, p. 77a, n. 11.

[59] On the different figures who made up the legal profession, see A. Padoa Schioppa, Brevi note sull’avvocatura nell’età del diritto comune, in Un progetto di ricerca sulla storia dell’avvocatura (nt. 9), pp. 41-53. On the illicit exercise of defense by causidici, see F. Colao, Procuratori e avvocati a Siena nel Settecento in «Studi senesi», 37 (1988), pp. 630-652 (especially pp. 637-638); E. Pagano, Avvocati ed esercizio della professione legale in Lombardia nel secondo Settecento. I causidici collegiati di Milano, in «Rivista di storia del diritto italiano», 74-75 (2001-2002), pp. 355-418 (especially p. 411).

[60] Ala, Tractatus brevis de advocato (nt. 24), p. 58-59. On causidici and notaries, see E. Brambilla, Genealogie del sapere. Per una storia delle professioni giuridiche nell’Italia padana, secoli XIV-XVI, in «Schifanoia», 8 (1989), pp. 123-150 (especially p. 143); R. Ferrante, Il «governo delle cause»: la professione del causidico nell’esperienza genovese (XV-XVIII secolo), in «Rivista di storia del diritto italiano», 62 (1989), pp. 181-255 (especially p. 250). On the illegal acts committed during trial by those who were not qualified notaries in the early modern period, see F. Bambi, Fides, la parola, i contesti. Ovvero, alla ricerca della publica fides, in Hinc publica fides. Il notaio e l’amministrazione della giustizia, V. Piergiovanni (ed.), Milano, 2006, pp. 23-47.

[61] On the relationship between the absolute truth and the inquisitorial trial, see F. Cordero, Ideologie del processo penale, Milano, 1966, pp. 152-153, 200-201; G. Alessi, Processo penale (diritto intermedio), in Enciclopedia del diritto, vol. XXXVI, Milano, 1987, pp. 360-401 (especially p. 377); L. Garlati Giugni, Inseguendo la verità, Milano, 1999; L. Ferrajoli,Diritto e ragione. Teoria del garantismo penale, Bari, 2004, pp. 17-18. On torture, see P. Fiorelli, La tortura giudiziaria nel diritto comune, Milano, 1954; A. Giarda, “Persistendo ‘l reo nella negativa”, Milano, 1980; M. Sbriccoli, “Tormentum idest torquere mentem”. Processo inquisitorio e interrogatorio per tortura nell’Italia comunale, in La parola all’accusato, J.-C.M. Vigueur, A. Paravicini Bagliani (ed.), Palermo, 1991, pp. 17-32.

[62] On defense in old-regime criminal trials, see E. Dezza, L’avvocato nella storia del processo penale, in Un progetto di ricerca sulla storia dell’avvocatura (nt. 9), pp. 111-134 (especially pp. 113-116).

[63] G.B. Baiardi, additio ad G. Claro, Liber quintus, sive Practica criminalis, Venetiis, 1626, p. 426b, n. 3.

[64] G. Cardano, De utilitate ex adversis capienda, M. Baldi, G. Canziani (ed.), Varese, 2004, pp. 761-784. On this court case, see C. Storti Storchi, Gerolamo Cardano “giurista” e la giustizia, in Gerolamo Cardano nel suo tempo. Atti del Convegno 16-17 novembre 2001, Pavia, 2003, pp. 207-219.

[65] E. Bossi, Tractatus varii, Lugduni, 1562, p. 142a, n. 18 e ss.

[66] Ala, Tractatus brevis de advocato (nt. 24), pp. 95-96; Xammar, De officio iudicis et advocati (nt. 22), f. 232ra, n. 39. On the relationship between confession and clues, see L. Garlati Giugni, Il diabolico intreccio. Reo convinto e indizi indubitati nel commento di Bartolomeo da Saliceto (C. 4.19.25): alle radici di un problema, in Panta rei. Studi dedicati a Manlio Bellomo, O. Condorelli (ed.), tome II, Roma, 2004, pp. 387-419.

[67] L. Garlati, Silenzio colpevole, silenzio innocente. L’interrogatorio dell’imputato da mezzo di prova a strumento di difesa nell’esperienza giuridica italiana , in Riti, tecniche, interessi. Il processo penale tra Otto e Novecento. Atti del Convegno (Foggia, 5-6 maggio 2006), M.N. Miletti (ed.), Milano, 2006, pp. 265-339.

[68] S. Pufendorf, Gesammelte Werke, band 4.1, De jure naturae et gentium, F. Bohling (ed.), Berlin, 1998, p. 325.

[69] Garlati, Silenzio colpevole, silenzio innocente (nt. 67), p. 280.

[70] Nazius, Dissertatio de conscientia advocatorum (nt. 25), pp. 54-55.

[71] On this idea in the Austrian criminal code of 1803, see E. Dezza,L’impossibile conciliazione. Processo penale, assolutismo e garantismo nel codice asburgico del 1803, in Codice penale universale austriaco (1803), S. Vinciguerra (ed.), Padova, 2001, pp. CLV-CLXXXII (especially p. CLXV).

[72] On the function of the interrogation as a safeguard according to liberal criminal doctrine in the nineteenth century, see C. Storti Storchi, Difensori e diritto di difesa nel processo penale italiano nel primo decennio dell’unificazione legislativa, in Officium advocati, L. Mayali, A. Padoa Schioppa, D. Simon (ed.), Frankfurt am Main, 2000, pp. 317-392 (especially pp. 335-336). On the interrogation of the defendant in the old-regime criminal trials, see P. Marchetti, Testis contra se. L’imputato come fonte di prova nel processo penale dell’età moderna, Milano, 1994; Garlati Giugni, Inseguendo la verità (nt. 61), pp. 140-150; Ead., Silenzio colpevole, silenzio innocente (nt. 67), pp. 280-307; Ead., La voce, il volto, la colpa. Il comportamento dell’imputato durante l’interrogatorio. Conseguenze ed effetti giuridici secondo le pratiche criminali d’età moderna , in «La Corte d’Assise», 3 (2013), pp. 25-45.

[73] On the relationship between truth and justice, see E. Opocher, Analisi dell’idea della giustizia, Milano, 1977, pp. 65-68.

[74] Cf. Danovi, Dovere di verità e dovere di lealtà (nt. 4), p. 98; Id., Commentario al codice deontologico forense2, Milano, Giuffrè, 2004, Comm. on art. 14; L.P. Comoglio, Etica e tecnica del giusto processo, Torino, 2004.

[75] R. Danovi, La toga e l’avvocato, Milano, 1993, p. 78.

[76] A. Mariani Marini, Probabilmente vero: avvocato, giudice, verità, in Processo e verità, A. Mariani Marini (ed.), Pisa, 2005, pp. 17-30 (spec. p. 23).

[77] Cf. artt. 10 and 13 of the code of conduct for Italian lawyers. On this subject, from an historical perspective, see Bianchi Riva, L’avvocato non difenda cause ingiuste (nt. 3), pp. 198-201.

[78] On the dichotomous concept of the truth, see P. Calamandrei, Verità e verosimiglianza nel processo civile, in «Rivista di diritto processuale», X (1955), I, pp. 164-192; G. Capograssi, Giudizio processo scienza verità, in Id., Opere, V, Milano, 1959, pp. 53-76; Opocher, Analisi dell’idea della giustizia (nt. 73), pp. 81-82; Rosoni, Quae singula non prosunt (nt. 56), pp. 299-305; Ferrajoli, Diritto e ragione (nt. 61); F. Cavalla, Retorica, processo, verità, Padova, CEDAM, 2005; Mariani Marini,Probabilmente vero (nt. 76), pp. 17-19; F. Macioce, Processo, giudizio e ricerca della (delle) verità, in Inchiesta penale e pre-giudizio. Una riflessione interdisciplinare. Atti del Convegno Teramo, 4 maggio 2006, P. Marchetti (ed.), Napoli, 2007, pp. 81-87.