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Shabbat Parashat Ki Tavo | 5768

Incompatibility Between a Lawyer and a Dayan

P'ninat Mishpat

(based on Halacha Psuka, vol. 46 - A Condensation of a Psak of Beit Din Hagadol)


Case: A defense lawyer (=pl) petitioned the court’s administration to disqualify a dayan (=def) because of acrimony between the two, claiming that def’s participation harms his livelihood.

Ruling: Certain relationships between litigants and witnesses or judges disqualify the latter from hearing a case. Do these halachot apply to lawyers as well as litigants? Lawyers do not have a recognized place in halacha and are most similar to a mursheh, one who represents a litigant in his absence. According to the strict law, only a plaintiff can appoint a mursheh. However, for hundreds of years the practice has been to allow even a defendant to appoint a mursheh. The Rif (Shut 157) says that a relative of a mursheh who is paid a flat fee for his services may serve as a witness or dayan in a case where he appears but not if he receives a percentage of the profits from the case’s outcome. If a witness will be disqualified because of a mursheh, the opposing litigant can disqualify the mursheh. Presumably, the same is true if a mursheh’s involvement disqualifies a set dayan. The Rashba (Shut III, 391) says that a mursheh may be incompatible with a witness or a dayan even if he receives no percentage of the case’s proceeds. In any case, both confirm the concept of incompatibility of this type.

In this case, the discord arose when pl began publicly asserting and registered a complaint with the police (who did not uncover evidence) that def accepted bribes. One can only assume that, based on the concept of reciprocal relations (see Mishlei 27:19), animosity exists in both directions.

In a case of incompatibility, who should be removed? There is a general imperative that a dayan who was chosen for a case take part even if the matter is unpleasant for him (see Shulchan Aruch, CM 12:1). In contrast, the right of legal representation is uncertain, especially for a defendant. While the minhag and the rules of Israeli batei din allow it, the right to a lawyer must give way when it conflicts with a dayan’s ability to judge properly. This is also the view of Israeli law regarding such cases. The rules of the religious courts also enable a lawyer to be removed if his presence hinders the ability to come to a just ruling or if he acts disrespectfully. It might be appropriate to appoint a different dayan if the lawyer had been representing the litigant for a long time to enable him to continue his job. However, pl was hired just for this case, after the panel of dayanim was set, and he should have informed the litigant that he could not accept the case. The delay in raising the issue until days before the hearing also suggests that the matter is a ploy to delay the hearing, which is in pl’s client’s best interest. Therefore, the petition is rejected.

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