The Legitimacy of Attorneys in the Beis Din

Question:

Answer:

People often entertain themselves by poking fun at the ruthlessness and opportunism of lawyers, but when it is their turn to stand before a judge they invariably want the most aggressive, polished attorney at their side. For a defendant in a secular court of law this is acceptable; however, the legitimacy of an advocate for a defendant in a beis din needs to be examined from a halachic perspective.

Attorney for the Defendant

The Shulchan Aruch[i] rules that a lawyer cannot represent a defendant, since an advocate is less likely to speak truthfully than is the litigant.[ii] The Chazon Ish[iii] explains that although the criterion of shaliach should allow the defendant to be represented by his lawyer, nonetheless, the dayan’s responsibility to pursue justice obligates him to hear the defendant first-hand. Therefore, Chazal[iv] enacted legislation favoring accuracy over the legality of shlichus, ruling that a lawyer may not substitute for the defendant.

Although the defendant technically cannot appoint a shaliach, a leniency was extended to noblewomen[v] and talmidei chachomim enabling them to avoid the courtroom. For both of the groups the investigative tools of the dayanim were slightly compromised in order to spare the defendants the indignities associated with litigation in court. The leniency allows an arm of the beis din—the court transcriber—to record their arguments in the privacy of their home.

Although this procedure may be confused with the role of an attorney, the similarities are, in fact, superficial. Instead of the defendant’s being allowed to appoint a shaliach, the beis din is allowed to appoint a shaliach for itself. This fundamental distinction considers the transcriber an extension of the beis din, and thus views the defendant as reporting directly to the beis din outside of the courtroom. This unique arrangement was designed to stifle dishonesty by maintaining as much courtroom reverence as possible in a home setting.[vi]

The status of talmid chochom is broad enough to include a contemporary scholar regardless of his occupation, provided that he utilizes every spare moment studying Torah.[vii]

The Chazon Ish extends the exception to someone who is ill and could only appear with great effort, as well as to an individual who would sustain great financial loss if required to appear in court.[viii]

In all of the above examples, the plaintiff has the option of being present when the defendant makes his counterclaim. The plaintiff’s presence may help squelch deceitful comments.[ix]

Attorney for the Plaintiff

According to Biblical law, the plaintiff has no legal right to representation. Whereas the Torah requires a defendant to respond to the claimant himself, he need not heed the claim of a shaliach.[x]  Yet the plaintiff needs an agent more than the defendant does, if thieves are to be prevented from getting away with their crimes by leaving town. Many victims would not follow the thief to a distant place to file suit. To avoid such a situation, Chazal instituted a mechanism known as a harsha’ah, whereby a plaintiff can appoint an agent to make a claim on his behalf.

The harsha’ah is an instrument empowering the agent to make the claim for himself. A loose translation of the harsha’ah document is: “You are hereby given ownership of a specific asset or object of mine; claim it for yourself in court and return it to me. I will accept any decision of the beis din and agree to cover your reasonable expenses.”[xi] (The wording of a harsha’ah is not sacred, but when translated into English the nuances of the original Aramaic should be retained.)[xii] Since the agent is now the plaintiff, the shlichus problem mentioned above is bypassed.

The transfer of assets to a mursheh was permitted by Chazal[xiii] for the plaintiff’s benefit to prevent him from being defrauded. Regarding the defendant, however, as noted above, Chazal felt it important to curb the standard power to appoint a shaliachmursheh. In other words, the plaintiff can have an attorney (mursheh) while the defendant cannot.

Modern Practice

Thus, the Shach[xiv] explains that in his time the custom was to allow the plaintiff to appear in court together with an attorney. The Shach seems to mean that only when a proper harsha’ah has been executed can the plaintiff be represented.[xv] He emphasizes that, with a harsha’ah, an attorney is sanctioned even when the claimant stands alongside him in court.[xvi] The defendant, however, is never allowed an attorney.

Nevertheless, the accepted practice in batei din today is to allow both parties to be represented by lawyers. The Tumim[xvii] and Aruch Hashulchan[xviii] both note that the custom in their communities was for both parties to have lawyers whether the litigants appeared in court or not, even though no harsha’ah was made. When an uncertainty arose, such as a contradiction between the lawyers’ statements, the litigants were required to appear in court and speak for themselves.

The Chazon Ish[xix] concludes that the only way to reconcile this practice with halacha is to distinguish between a mursheh and an advocate. A mursheh is an attorney who can legally represent the client with the power to stand in his stead, as described earlier. An advocate is an advisor who has no legal power to act on behalf of his client, but functions as counsel and can present his client’s position lucidly and convincingly to the dayanim. However, an advocate is only permitted in beis din with the adversary’s consent. The Chazon Ish reasons that the basis for the prevalent custom is that each party gives implied consent, allowing his opponent the luxury of an advocate.

Thus, technically, only a plaintiff can insist on being represented legally by a mursheh. In practice, however, since a harsha’ah is rarely written, the adversary’s agreement is necessary for either the defendant or the plaintiff to have an advocate. Consequently, if any litigant chooses to veto his adversary’s right to an advocate, that decision must be respected. Obviously, he should be prepared for reciprocity. Usually the presence of advocates goes unchallenged because of the great security they give their clients.

Admission by the advocate

Understanding the legal status of a lawyer in the beis din may be beneficial to the litigant. For example, after accepting that a proper mursheh who makes incriminating admissions in beis din implicates his client, the Shach asks:  If a defense attorney makes incriminating admissions, does he also inculpate his client?[xx] The Maharashdam[xxi] maintains that since there is no halachic basis for a defendant’s mursheh, the defendant can deny any admission made by his lawyer. The Rivash[xxii] and the Shach disagree and state that the admission is binding and incriminating. The Ketzos Hachoshen[xxiii] sides with the Maharashdam unless the defendant instructed his lawyer to make an admission.

In my opinion, a plaintiff’s advocate—according to the prevalent custom, where no harsha’ah is executed—falls into the same category as the defense attorney just discussed. Hence, a plaintiff who denies statements made by his lawyer may not be liable. In this case, the weakness of the attorney’s standing in beis din may actually benefit his client.

Choosing an Attorney

This exposition can be helpful to a person choosing an attorney by offering a better understanding of the legitimacy and role of representatives in the beis din. It is advisable to seek a creative, knowledgeable and eloquent advocate in order to obtain the most advantageous result possible according to Torah law.[xxiv]

Yet, when one approaches a dispute in beis din there is another pressing issue—albeit an often–overlooked one—for which good counsel may be invaluable. The tensions of litigation have a tendency to bring out the worst in people. It almost seems as if the beis din were Hashem’s laboratory for testing people’s character and behavior. A lawyer who is an honest and G-d–fearing mentsch can help his clients maintain their integrity as bnei Torah. If this quality is a priority when choosing counsel, then even if the dayanim do not rule in his favor, the client is likely to emerge from Hashem’s character tribunal victorious.

BookID: 4 Chapter: 124

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