The Role of Lawyers in Beit Din - Part II by Rabbi Chaim Jachter


              Last week we saw that Halacha does not find it desirable for litigants to be represented by )&31*. in Beit Din.  Yet, lawyers often do represent Baalei Din (litigants) in Beit Din proceedings.  This week we will continue our exploration of this issue.

Maintaining Innocence - Ketubot 52b

              Last week we developed the idea that litigants should not be "coached" for their presentation in Beit Din.  Now we will look at a Gemara in Ketubot 52b which discourages Talmidei Chachaim from coaching individuals (giving "lawyerly" advice) even outside the context of Beit Din.

              The Gemara states:  (translation and explanation by Rabbi Michael Broyde "The Pursuit of Justice and Jewish Law" pg.15-16)

The relatives of Rav Yochanan had to support the wife [widow] of their father who required continuous medical treatment.  They came in front of Rav Yochanan who advised them to arrange for a contract with the doctor for medical care for the woman's whole life for a fixed price.  Rav Yochanan later stated that we have made ourselves like lawyers (Orchei Hadayanim).  Initially, [the Talmud asks], why did Rav Yochanan think [that it was permitted for him to help these people with advice]since it states "from one's relatives one should not turn away (Yeshayahu 58:7)" [i.e. one should help one's relatives] in the end the thought that this conduct was unbecoming of an eminent scholar person [Adam Chashuv] (see generally Encyclopedia Talmudit 1:175-180 for a discussion of the parameters of this status of "Adam Chashuv").

              In order for this incident to be understood, we must provide some background in the Halachot of family relationships.  According to halacha, a widow must be supported by the estate of her husband unless she sues for payment of her Ketuba (Shulchan Aruch E.H. 93:1-2).  The heirs may not compel her to receive the Ketuba payment in lieu of support from the estate Halacha requires that the widow's continuing medical expenses (95&!% :!*0 -% 87"%) be chargeable to the heirs of the deceased husband's estate and not against the wife's entitlement from the estate (i.e. the Ketuba).  On the other hand, fixed-cost contracts for medical care (95&!% :*: -% 87"%) are considered expenses that may be deducted from the wife's Ketuba payment.

              Rav Yochanan's advise to the heirs was very simple and was designed to both reduce the heir's expenses and reduce the amount the heirs would eventually have to pay for the Ketuba.  Instead of paying for medical care as needed, they should seek to purchase a lifelong contract for medical care, which they do not have to pay out of pocket and can also deduct from the widow's entitlement in the estate.  In a situation where the heirs to the estate are not the same as the heirs to the widow's estate, there can be very significant monetary ramifications to this action.

              We see from this incident the negative attitude Chazal felt about Talmidei Chachamim offering "lawyerly" advice even outside the context of Beit Din.  Chazal sought to maintain the innocence of all parties concerned and tried to avoid people contriving means to circumvent laws established for the betterment of individuals, families, and society.

Shavuot 31a

              We shall cite at some length one more Talmudic passage which illustrates the negative attitude Chazal felt about hiring a professional to serve as one's representative in Beit Din.  The Gemara states:  (we quote the Gemara at some length to provide context for the Gemara's negative statement towards legal representation in Beit Din)

              From where do we know that if one Baal Din comes to Beit Din dressed in rags and the other in the finest of clothes that the Beit Din tells the latter to either dress similar to his adversary or give your adversary clothes of the same quality to wear?  The source is the Pasuk /$"9 :89 ;9(8, "avoid all falsities (Shemot 23:7)" [that the Dayanim should not put themselves into a situation in which they might judge a litigant more favorably due to the clothes he wears].

The Gemara continues:

              From whence do we derive that one should not plead his case to the Dayanim in the absence of the opposing litigant?  The source also is /$"9 :89 ;9(8.  [The quote] "He that does something not good among his nations (Yechezkiel 18:18)" Rav says is referring to one who appoints someone to represent him in Beit Din (%"! "%9:!%).  Shmuel says this refers to a tough person who purchases property [at a low price] which has liens upon it [and believes he will not be evicted by the lienholder due to his toughness].

              This Gemara depicts very clearly the negative attitude Chazal have about appointing legal representatives.  Rashi explains that the reason for this negative attitude is that the )&30 will not agree to a compromise (Peshara) because he is not Halachically empowered to do so (the individual who appointed the )&30 could claim -;8&1* :$9;*+ &!- -3&&;*, I appointed you to help me but not to hurt me)

              Tosafot (s.v. '%), however, points the way to permitting the appointment of a )&30 under certain circumstances.  Tosafot writes:

              This [prohibition] applies only when he hires a violent representative or an exceedingly argumentative individual who is getting involved in a fight which he should have no part in.  However, if the representative is working [not as a "sword," rather as a "shield"] to retrieve lost money the Baal Din would otherwise be incapable of retrieving, then he is performing a Mitzvah.

The Rambam takes a similar approach in his teshuvot (no. 272, Blau edition):

              It is forbidden to appoint a representative unless it is absolutely necessary to do so - such as if the ;&"3 (plaintiff) lives in a different city than the 1;"3 (defendant) and is unable to come to the defendant's city (Halacha requires the ;&"3 to represent the case in the Beit Din in the city in which the 1;"3 resides) or if the ;&"3 is ill, or other similar justifiable needs.

              Rav Zvi Yehuda Ben Yaakov writes (Techumin 16:352) that it may be reasonable to add to the list an inarticulate individual or someone not versed in the ways of money and business who is incapable of competently representing his case.

              Next week we will conclude our discussion of lawyers with a discussion of how the practice developed that the presence of )&31*. in Beit Din has become so commonplace.

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