The Catholic Lawyer

Volume 12 Number 1 Volume 12, Winter 1966, Number 1 Article 7

The Role of the Civil Lawyer in Church

Lawrence X. Cusack

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This Symposium Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. THE ROLE OF THE CIVIL LAWYER IN CHURCH COURTS

LAWRENCE X. CUSACK*

L ESS THAN TEN YEARS AGO it probably would have been accurate to say that the civil lawyer, except one qualified as an of the Sacred in Vatican City, had no role to play in the Church courts and was likely never to have one. The same response might not be accurate if given today. The Church and the world have been stirred into new patterns of thought by John XXIII and Paul VI. We now hear talk about the "Age of the Emerging Layman." A new conception of lay activity in Church affairs seems to be replacing the centuries old picture of the mute, passive congregation led unquestioning by a better educated, paternalistic priesthood. In the United States today, we are beginning to observe an interaction between clerics and laymen that was virtually unthinkable a generation ago. A well-educated, sophisticated is asking to be invited into the councils of the Church, so that from the standpoint of their own disciplines and specialties, whether it be educa- tion, medicine, law, philosophy, science or some other such secular vocation, they can assist in shaping the dynamic modernization of the Church to cope with the revolutionary changes that are taking place in this atomic era. No less than in other areas is this likely to be felt than in the updating of the Code on Law and with it, perhaps, a revamping of the procedures of the Church courts. This is not likely to mean that the civil lawyer will, in the near future, play a leading role in the ecclesiastical . It may well mean, however, that the civil lawyer, who so far has had virtually no connection with the Church courts outside of Vatican City, will soon be offered the supporting

* A.B., LL.B., Fordham University. 12 CATHOLIC LAWYER, WINTER 1966

role of assisting the of the Church ments are by no means insubstantial. Aside courts in the process of their adjudications. from the preliminary qualifications men- Later, we will see some ways in which tioned, he must spend two years of study this change might be brought about. to merit a in , the Qualifications of an Advocate degree known as J.C.L., or one year of Before the civil lawyer can give serious study to merit a Baccalaureate in Canon thought to playing a significant role in Law, the degree known as J.C.B. The the Church , he must realistically course of study is itself a challenge, cover- face up to the fact that, with a few excep- ing as it does such imposing sounding tions, civil lawyers are not presently subjects as juridical science, public ecclesi- qualified to participate, except possibly in astical law, the history of canon law, an ancillary way. The Code of Canon Law , comparative law, and meth- does not require that an Advocate in a odology. Church court be a cleric, but it does specify In Canada, the University of Ottawa that one must at least have a of has a of canon law which has Canon Law or be otherwise truly skilled pontifical recognition. There, the require- in the subject. The barrier that this pre- ments and courses are essentially the same sents to the civil lawyer can be brought as in the Catholic University of America, home by looking to the requirements for except for a shift of emphasis involving obtaining a recognized degree of Doctor the interrelationship of canon law with of Canon Law. Canadian . In the United States, the only university At both these universities, laymen would which has a School of Canon Law capable be admitted if they qualified for admission of giving degrees which are canonically according to the indicated standards, but acceptable is the Catholic University of the practicalities of the matter are evi- America in Washington, D.C. Even denced by the fact that in the history of before a candidate is admitted to the the Catholic University of America, full School of Canon Law he must show either doctoral degrees have been conferred upon that he has completed a four-year course only two laymen, and at the School of. in theology or that he is capable of passing Canon Law of the University of Ottawa, an examination on the principles of moral there are no laymen studying at the philosophy, natural 1 a w, fundamental present time, nor have there ever been. theology and the institutes of canon law. Economic Considerations Even if he is accepted for admission to If the American civil lawyer wishes to the School, there is the sobering fact that qualify for practice before Church courts, the Doctorate of Canon Law, the J.C.D. he faces a serious economic problem. After degree, is only conferred after three years the usual sixteen years of study necessary of study culminated by the submission of to obtain his basic baccalaureate degree, a written dissertation. There are lesser and at an age when most men are going degrees which might be sufficient to into business, he has already spent an- qualify him for limited recognition in the other three years obtaining his civil law Church court, but, there too, the require- degree and admission to the civil bar. If, CIVIL LAWYER in addition to this, he spends several more his practice to the representation of clients years in becoming academically qualified before a Church court. as a canon lawyer, it is obvious that he In passing, we note that the Vatican has made an extraordinary additional in- City tradition is different. Before the vestment of time, expense, and loss of Sacred Roman Rota, almost all of the earnings in order to be able to call himself are laymen, and they are com- a Advocate. pensated accordingly. As matters stand today, it is unlikely Auxiliary Role that he will be able to recover his invest- It may be, therefore, because of the ment in dollars. First of all, canon law practical considerations mentioned, that provides that the fees of Advocates may the American civil lawyer must for the be fixed by a provincial council or con- indefinite future face up to the fact that vention of , and in the United in the Church courts of this country he States there is a tradition of gratuitous can play no more than an auxiliary role. services or only token fees. Moreover, As we shall see, however, the possibilities the Church courts in this country have here are by no means insignificant. They attempted to remove the economic burden hold out promise that American civil from Church court proceedings. As a lawyers can, as at least to part of their result, most subsidize the greater practice, give a measurable degree of part of the expenses of their tribunals and aid and assistance to the officials of the of the proceedings before them. Parties Church courts by sharing some of the seeking relief are usually asked to pay a burdens of the tribunal officials in areas small percentage of the actual costs, in- that do not require expertise in substan- cluding fees of Advocates. In the Metro- tive canon law or tribunal procedure. Such politan Tribunal of the Archdiocese of assistance might help alleviate the per- New York, the -Advocates do not ennial problem of delay in the process of accept fees; they function gratuitously. adjudication-a problem, as we know, not This is generally the pattern throughout peculiar to Church courts-and might the United States. Where fees are taken, possibly free the tribunal officials and they usually can be classified as only Advocates for other more important as- nominal compensation. Moreover, under pects of their work and, conceivably, in canon law, an approved Advocate must, some cases, free priest-Advocates for at the request of the tribunal and upon duties in other fields of their ministry. appointment by the Ordinary, render grat- Lay Experts uitous services for the poor whenever he One area in which laymen have been is called upon to do so. Thus, it is and will continue to be of assistance in the apparent that unless a different tradition work of the Church courts is as experts evolves, a layman who qualifies as an on subjects other than canon law. The Advocate in a Church court in this coun- outstanding example is the physician. try is likely to find that the financial Canon law also recognizes that a lay wit- recompense will not be sufficient to enable ness may be called upon for expert testi- him to devote any substantial amount of mony in regard to questioned documents, 12 CATHOLIC LAWYER, WINTER 1966 for example, to establish the authenticity and procurement of these records. Even of the alleged handwriting of a party on where there is no special problem in ob- a material instrument. taining them, the civil lawyer can at least Although it does not frequently happen, perform the useful function of acting as a there have been cases where civil lawyers fact-gatherer. It is true that, because of have been called upon to render testimony the international character of the Church, as experts in matters involving a proper officials of tribunals and chancery offices interpretation of civil law. This might have a world-wide network within the happen, for example, in a case involving Church to assist them in obtaining records a contractual dispute between a cleric or and proofs. A civil lawyer, at least by his a religious and some ecclesiastical organ- own devices, is not in a position to obtain ization or religious order or community. the same information as easily, as readily, It could happen, as well, where questions or at the same minimal cost, but there is involving the civil laws of wills and trusts no reason why, with tribunal approval, a might arise in connection with the provi- civil lawyer could not work through the sion of canon law that dictates ecclesias- same channels as well as through civil tical administration of pious bequests or channels known to him. Public officials, foundations. In these matters, the lawyer and officials of certain organizations such would be giving testimony as a lay witness as hospitals, are usually willing to co-op- with regard to the rules and principles of erate with clergymen to a greater degree civil law much in the same way as a than with a civil lawyer, and sometimes medical doctor would be called upon to they will provide information to on give testimony with regard to medical or a confidential basis which they would not psychiatric matters. feel free to make available to laymen. Acting as an expert on an informal basis Here again, however, if the lay lawyer is is another possibility. The Church courts, acting in a sense as a representative of a particularly in matrimonial cases, often Church court, the way might be cleared encounter obstacles or questions involving for him to achieve substantially the same civil law and procedure. Here, the civil excellent results. lawyer is in an excellent position to assist In certain respects, the use of a civil the court or the Advocates in reaching a lawyer may be virtually indispensible. In sufficient understanding of the civil law some jurisdictions, certain medical, hos- aspects of a matter to a degree necessary pital and institutional records are required for them to process the Church court case. by law to be kept confidential unless Procurement of Records proper consents are obtained or the records A real contribution could be made by are directed to be made available by an civil lawyers in assisting the Church courts order of a civil court of competent juris- in the procurement of records pertinent to diction. A civil lawyer, willing to famil- the issues in tribunal proceedings. At iarize himself with the relevant law and present, it is customary for the Church procedure, can prove invaluable to a courts and their Advocates to devote a Church tribunal. In a particular case the great deal of time and effort to the location civil lawyer may also be in a better posi- CIVIL LAWYER tion because of his knowledge of civil law would be in collateral civil law proceed- and procedure and his familiarity with the ings. One problem that faces the Church workings of the civil courts, to obtain tribunals is the occasional refusal of a records of civil proceedings, especially party or witness to give testimony. The when they contain medical or psychiatric Church court, having no civil jurisdiction, information or statements by doctors. has no authority to punish for contempt Role as Investigator except by imposing ecclesiastical sanctions. The lay lawyer also has a potentially This could be efficacious as to a reluctant important auxiliary role as an investigator. party-petitioner, since the Church could In many Church court proceedings facts threaten to deny relief or tax him with are not provable by available documentary the costs or expenses of the proceedings. evidence and the testimony of witnesses is As to a party-defendant or witness, how- essential. Some common examples are the ever, the ecclesiastical sanctions are usu- testimony of friends and relatives in cases ally more theoretical than real. Ordinarily, involving allegations that a particular mar- the threat of an ecclesiastical sanction or riage was not validly contracted because its imposition has very little practical effect. of the insanity of one of the parties, or Here the civil lawyer might play a role. because one of the parties was induced He might, for example, be able to use his to enter the by force or fear, or persuasive powers to induce the witness because one or both of the parties simu- to testify, perhaps by speaking to the lated the required contractual consent. reluctant witness in terms and at a level In these cases there is the problem of which would not be possible for a clerical locating witnesses, of inducing them to Advocate. Moreover, in a particular case, testify and of refreshing their recollection. it might be feasible for the civil lawyer, In all of these respects, most civil lawyers by the commencement of some kind of would be likely to have some expertise of collateral civil action, to elicit testimony their own. While there is no reason to and obtain documentary evidence that believe that they would be better able to might not otherwise be forthcoming. If achieve results than a qualified curial the facts warranted it, he might, for ex- Advocate, they would, nevertheless, be ample, represent the complainant in an freeing the personnel of the Church court action for separation, or a tort action to for other duties. Importantly too, in the achieve legitimate civil law objectives, and case of a civil lawyer whose client is the then use the record and evidence adduced petitioner in a Church court proceeding, therein as collateral proof or as corrob- he would have the satisfaction and advan- oration in a Church court proceeding. tage of not only relieving the tribunal offi- This might also open the door to certain cials of a burden but also of rendering a public records. There are certain instances valuable service to and retaining the good in which public officials decline to make will of his client. confidential records or documents avail- Collateral Civil Proceedings able unless they are satisfied that the same Another way in which the civil lawyer subject matter has already been made a might be able to aid the Church court matter of public knowledge as a result of 12 CATHOLIC LAWYER, WINTER 1966 a civil court proceeding. ized to process that type of case. Channel for Referrals (3) In all other cases where the per- A civil lawyer can sometimes perform son is seeking an ecclesiastical a valuable task by referring his client to or dissolution of marriage, he should be the appropriate Church office or if referred to the diocesan tribunal. his client has presented a legal problem In the Archdiocese of New York, the that the lawyer recognizes to have religious tribunal has office hours for interviews overtones. Monday through Saturday, excepting holi- and holy days. In the case of people Where the lawyer detects that the prob- days distance from the tribunal lem is a matter of conscience and that the who live a long offices, there is a circuit court which con- client is in need of spiritual counseling, he ducts interviews at rectories in outlying will refer him to his priest. The par- ish priest is trained and instructed not only areas of the Archdiocese. Thus, the lawyer who is familiar with in counseling but in the evaluation and an referral of cases that are in need of services these distinctions and procedures is in excellent position to assist his clients by by some diocesan office. The priest can making proper referrals. then act not only as a counsel but also as a screening agent. He knows the proper Some Cautions procedure and, in making a referral, is in The civil lawyer's enthusiasm to allevi- a position to pass on to the diocesan office ate the burdens of the Church court the knowledge of material facts obtained officials should, however, be tempered by in the interview. the observance of a few cautions. First of Where the lawyer recognizes that his all, he should frankly recognize that, client's problem does require spiritual whatever his sterling qualities as a civil counseling, it is valuable for him to know lawyer, he is not competent either by the referral procedure in his own . education or experience to advise a client In the Archdiocese of New York, the on canon law or Church court procedure. basic rules of a referral procedure are as Most importantly, he is not in a position follows : to render any knowledgeable and reliable (1) A person who desires to obtain opinion as to the prospect of success in permission to seek a civil , civil any application by his client for ecclesi- annulment or civil separation, should be astical permission or relief. To attempt referred to his parish priest who will, if to do any of these would certainly amount the circumstances warrant, refer the mat- to interference with the work of the ter to the Family Life Bureau. Church court and could have the effect (2) A person who desires to seek a of prejudicing his client's attitude. of marriage on the This frank recognition of lack of quali- ground of lack of canonical form, namely, fication of which we have spoken will also that he was a Catholic at the time of the mean that the civil lawyer will not attempt marriage but the marriage was not per- to involve himself in a court proceeding formed by a priest, should also be re- as an Advocate or associate Advocate, or, ferred to his parish priest who is author- unless specifically invited, as an assistant CIVIL LAWYER

Advocate. Nor, moreover, should he pre- his client, or some other interested person, observe with regard to a civil case that sume to act as an agent or intermediary to the lawyer was handling. From experience, of the Church court or of the officially it has been found that most inquiries can appointed Advocate without express re- be answered by telephone, but this is not quest or permission. To do otherwise a universal rule and the civil lawyer would be an intrusion into the processes should exercise his own best judgment as of the Church court in the same sense as to whether in a particular case the com- a priest who attempted to interfere with munication might be better made by letter. the processes of a civil proceeding would This would certainly be true where there be regarded as an interloper. To intrude is some question as to the lawyer's entitle- in a Church court proceeding when he ment to information or where, for ex- was not specifically requested to assist in ample, he wishes to communicate to the some way would mean that the civil law- tribunal a matter or statement of some yer would probably only delay the pro- length or complexity. To civil lawyers ceedings, cause annoyance to the court who live daily with the problem of work and to the Advocate and would not interruption, it is unnecessary to say that necessarily be promoting his client's cause. contacts with the Church court should be If the civil lawyer thinks he can make limited, if possible, to suitable intervals. some contribution to the process of adjudi- Then, too, the experienced civil lawyer in cation, and is willing to volunteer his communicating with the Church court, will assistance in the discretion of the tribunal, not confuse argumentation and advocacy he will find that the tribunal officials will of his client's case with legitimate inquiry. be sympathetic to his desire to assist them Finally, the civil lawyer, with his presumed and his client. They certainly will not be familiarity with the Canons of Legal and unaware of his interest in retaining his Judicial Ethics, would certainly be ex- client's goodwill. In a proper case, and pected to observe the basic rule of pro- within proper limits, the tribunal officials priety in dealing with a case that is at the may be more than willing to have the stage of adjudication. Of course, it is assistance of a civil lawyer in taking some inconceivable that he would improperly of the burden of the work of a case off attempt to influence the judgment of the their shoulders. In the Metropolitan Tri- court. bunal of the Archdiocese of New York, the Future and this is probably true in most diocesan A Look to now tribunals, the officials stand ready to dis- We can say, then, that as matters for cuss, with proper and obvious limitations, stand and as they are likely to stand any pending proceeding in which a civil the immediate future, a civil lawyer will lawyer has a legitimate interest. probably play only an auxiliary role in courts. He is handicapped by There are, however, some obvious cour- the Church the required academic background, tesies and proprieties to be observed by lack of an absence of opportunity for train- the civil lawyer in dealing with tribunal and by ing and experience in the work of the officials. Actually, they are similar to the He faces the economic barrier courtesies that a civil lawyer would expect tribunals. 12 CATHOLIC LAWYER, WINTER 1966 involved in adding several years of school- Even if this development did not come ing to his already long years of education, to pass, the change in attitude, typified by and also the tradition in the United States reference to the "Age of Emerging Lay- of gratuitous services or nominal compen- men," might lead to a relaxation of can- sation for Church court Advocates. For onical regulation that would permit civil these reasons, the civil lawyer knows that lawyers or other qualified laymen to engage he can currently aid and assist only in a in some form of limited practice before supportive capacity, as an expert, as a the Church courts without first obtaining procurer of records, as an investigator, a doctorate in canon law. For example, perhaps sometimes as a civil lawyer in an it might be felt that a layman who had ancillary proceeding, and as a knowledge- already earned a baccalaureate degree in able referrer of cases. Nevertheless, in civil law might achieve limited qualifica- these lay capacities his talents, his experi- tion as an Advocate, even though not as a ence, and his education as a civil lawyer tribunal , by the taking of a post- can prove to be of great benefit to the graduate course equivalent to what is Church courts by helping them in expedit- now required in most universities for a ing their adjudications and freeing their master's degree. This arrangement could personnel for other more important work. be further facilitated for civil lawyers if In these ways, too, he can sometimes a number of the Catholic universities provide a valuable service for his regular throughout the country were given ponti- clients. fical authority to provide limited courses law and give such special non- Is this, then, a state of facts that is in canon likely to exist for the indefinite future? doctoral degrees. Not necessarily. In the first place, we have Moreover, it is not unlikely that the the tradition of lay advocacy before the officials of the Church courts in this Sacred Roman Rota. One of the possible country may conclude that they are in a changes in canon law that has been men- position, without any change in canon tioned is the feasibility of in some way law and with perhaps little or no changes decentralizing the appellate jurisdiction of in diocesan regulations, to encourage in- the Sacred Roman Rota. If this came to creased participation by civil lawyers in pass and there was, for example, estab- the work of the tribunals along the lines lished in the United States an appellate of the auxiliary services previously men- ecclesiastical court with jurisdiction equiva- tioned. Indeed, even today, as churchmen lent to that now found only in Rome, are becoming more attuned to the possi- this might lead to the development of a bility of receiving assistance from laymen corps of American lay Advocates. Pre- in those areas in which laymen have sumably, they would be permitted to special qualifications and experience, and charge reasonable fees that would encour- as laymen are becoming more alert to the age a sizable number of laymen to spend fact that their services are needed and the years and funds necessary to qualify desired, there is no reason why the Church themselves as canon lawyers and develop courts could not hold out a hand to the a practice. (Continued on page 90)