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Shabbat Parashat Beha'alotcha 5776

P'ninat Mishpat: The Lawyers Rights to Full Fees from Reluctant Client part I

(ruling 72060 of the Eretz Hemdah-Gazit Rabbinical Courts)

[In the case we will be introducing this week, beit din dealt with allegedly unpaid fees by a client to a lawyer during a professional relationship that spanned 4 years. The long ruling relates both to general topics that apply throughout and certain questions that relate to individual cases the lawyer handled. In each installment, we will deal with one or two issues.]


Case: The plaintiff (=pl) is a lawyer (/owner of a law firm) who represented the defendant (=def), a wealthy businessman (/businesses he owned) in many matters, including several multi-million-shekel (attempted) purchases. Def paid pl more than 1.6 million shekels over 4 years, but pl claims that he is still owed more than 2 million shekels.

Issue #1: Some of the work was supposed to be paid by hour of work. Pl presented logs of work that he and other of the firm’s lawyers performed on def’s behalf (detailed according to the project, hours spent by day and the basic description of the work). In many cases, def argues that the amount of time claimed by pl is illogical and thus must be exaggerated.  


Ruling: Issue #1: The gemara (Shvuot 46a) concludes that if there is a dispute between the employer and the worker regarding how much pay he was promised, the employer is believed, after he swears, because the worker is trying to extract money from him. The same rule should ostensibly apply when there is a disagreement about the amount of time worked, which is part of establishing the salary due. There is a difference, though, in that there the employer makes a definite claim contradicting the worker, whereas here, the employer just surmises that the time claims are incorrect. On the one hand, even when a plaintiff is certain and a defendant is uncertain, we do not extract payment (Shulchan Aruch, Choshen Mishpat 75:9). On the other hand, when a defendant admits part of a claim and is not sure about the rest, we say that since he should be required to swear and is not able, he has to pay (ibid. 13). Yet, in a case where he is not able to know, he does not have to pay in that case (Shach 75:54).

In the final analysis, when an agreement on pay was made when it was known in advance that one side would know the amount and one would not, the situation is different. The Rama (CM 91:3) says that in such a case, the one who knows can swear about the amount due to him and receive it. The S’ma (14:5) says that this is the case as long as the amount due was accrued in the framework of activity for the defendant’s benefit (as in this case), as opposed to cases such as one who deserves a return of legal expenses, who needs to prove how much he spent. The Shach (CM 91:23) distinguishes between cases where the defendant implied he was believing the plaintiff and when he does not. According to this, as well, from the fact that def asked pl to work per hour and did not arrange a mechanism other than believing pl, he should be obligated. This is true both regarding those entries that pl himself recorded and those that his associates recorded; oral testimony is not necessary (see Shulchan Aruch, CM 91:5).

The Pitchei Teshuva (91:4) says that if there is reason to suspect that a plaintiff fabricated such claims, he can lose his credibility. However, def was not able to substantiate such claims, which he made regarding certain projects. (Rounding off hours in a manner that is accepted is not considered fabricating).

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