Part I: The Problem
To’anim, rabbinical lawyers or pleaders, often represent clients in many batei din. However, this practice raises serious halachic questions, so we will outline the basic approaches to utilizing to’anim.
Introduction
The Torah (Shemot 22:8) commands that the litigants’ “words should be spoken to the judges.” The Mechilta comments that this verse teaches that the litigants (ba’alei din) may not use lawyers in beit din. The Torah Temimah explains:
It appears that the Mechilta is teaching that the litigants should not present their case to the dayanim through interpreters or to’anim. Rather, the dayanim must hear testimony from the mouths of the litigants themselves, as the verse states, “The words of both parties should come before the dayanim”…. However, when to’anim are employed, the words of the litigants reach the ears of the to’anim and not the dayanim. [The Mechilta] also precludes lawyers who try to convince the dayanim of the correctness of their client’s perspective, as is done in the non-Jewish courts. The reason for this appears to be that the majority of these professional to’anim are hired by one litigant to present his claims. They are sly people who find clever and deceitful means of misleading the dayanim to rule in favor of their clients. Therefore, the Torah sought to eliminate this problem by not permitting to’anim to appear in court; rather, the litigants themselves should plead their case to the dayanim.1Rav Ezra Basri (Dinei Mamonot 1:441) recounts how often a husband and wife would come to his beit din when they were experiencing marital problems. Rav Basri could sense that the couple themselves were still interested in reconciliation, but each one’s lawyer would nevertheless come up with extremely divisive claims (which would push the couple towards separation), in order to be paid more money by their prospective clients. Also see Rav Yonah Reiss’s essay in Shaarei Tzedek (2:202), where he urges greater stringency regarding the laws of to’anim in light of the many negatives that have been observed when they act unscrupulously.
Halachic Support for the Torah Temimah’s Explanation
Many halachic sources support the Torah Temimah’s emphatic assertion that the Torah wants the dayanim to hear the litigants’ claims directly. For example, the Halachah (Shevu’ot 31a and Shulchan Aruch, C.M. 17:5) forbids one litigant from presenting his case to the dayanim in the absence of his adversary. The Sema (17:10) explains that if the opposing litigant is not present, the litigant who is present will not be afraid to lie. Similarly, one might not hesitate to lie to his lawyer, so the lawyer will subsequently not hesitate to present a false case.
In addition, the Halachah (Shulchan Aruch, C.M. 17:6) forbids witnesses from testifying through a translator.2Rav Ezra Basri commented to me that a dayan in Israel today should be fluent in English, Russian, French, and Spanish (besides Hebrew, of course). If the dayanim understand a language better than they speak it, they may address the witnesses through a translator, but they must still hear the testimony directly from the witnesses (Shulchan Aruch, C.M. 17:6). According to the Pitchei Teshuvah (C.M. 17:12), litigants may not use translators even if both parties have them. We hesitate to accept translators because a dayan stands a better chance of discovering and clarifying the truth when he hears the testimony directly from the witnesses.
For this reason, the Shulchan Aruch (C.M. 124) requires the litigants to appear in court in person. Only Torah scholars and “dignified women” (nashim yekarot) may claim that it is beneath their dignity to appear in beit din. In these two instances, a court agent (sh’liach beit din) comes to the sage or woman, transcribes his or her arguments, and subsequently presents them to the dayanim.
Preserving the Innocence of the Litigants
Traditional sources also seem to discourage the presence of lawyers in beit din in order to preserve the “innocence” of the litigants. For example, the Rama (C.M. 17:5) rules that a Torah scholar should not inform a litigant whether his position is correct, lest the litigant deduce from the information how to fraudulently win his case. The Mishnah (Avot 1:8) prohibits acting as an attorney (k’orchei hadayanim). In his commentary to the Mishnah (ad loc.), the Rambam explains that one should not coach a litigant by teaching him which claims will help him win the case.3Not all commentators accept the Rambam’s interpretation of “orchei hadayanim.” See Rashi and Midrash Shmuel on this Mishnah for a variety of interpretations of “orchei hadayanim.” The Rambam adds that this prohibition applies even when one knows that the litigant deserves to win. Even in such a case, the litigant must present the facts truthfully to the beit din and may not lie in order to ensure his victory. Similarly, the Gemara (Ketubot 52b) discourages Torah scholars from advising individuals (offering “lawyerly” advice) even outside the context of beit din.
In order to understand the incident described in the Gemara properly, we must provide some background in Jewish family Halachah. According to Halachah, a deceased man’s heirs must support his widow, unless she demands the payment of her ketubah (Shulchan Aruch, Even Ha’ezer 93:1-2). The heirs may not compel her to receive the ketubah payment in lieu of support from the estate. Moreover, Halachah requires that the widow’s continuing medical expenses be charged to the heirs of her late husband’s estate, rather than deducting the expenses from her ketubah. On the other hand, fixed-cost contracts for medical care may be subtracted from the ketubah payment. Based on these laws, the Gemara records:
The relatives of Rabbi Yochanan had [to support] their father’s wife [widow] who needed daily medical treatment. They approached Rabbi Yochanan for advice. He responded, “Go, fix a price with the doctor [for all the widow’s future medical treatment].” Rabbi Yochanan later [regretted his action and] stated, “We have made ourselves like lawyers (orchei hadayanim).” Initially, what did Rabbi Yochanan think [when he decided to advise his relatives]? Since the Tanach states, “From one’s relatives one should not turn away (Yeshayahu 58:7),” [he thought that he should assist his relatives]. In the end, [he regretted his decision because] a prominent figure (adam chashuv) is different [and this behavior does not befit him].4See Encyclopedia Talmudit 1:175-180 for a discussion of the status of “adam chashuv.” Rav Yonah Reiss (Sha’arei Tzedek 2:202) suggests that all Torah scholars act like “prominent figures” regarding this issue.
Rabbi Yochanan’s advice to the heirs enabled them to deduct her medical expenses from future ketubah payments, thus saving them a significant amount of money at her loss. From this story, we see the negative attitude Chazal maintained towards Torah scholars offering legal 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.5Indeed, Rav Ezra Basri (Dinei Mamonot 1:443) writes that people often ask him to discuss the halachot of a “hypothetical” case with them, when they are about to litigate an identical case in beit din. Upon discovering that they are actually seeking his assistance for an actual situation, he refuses to provide them with halachic knowledge and instead demands that they honestly present the facts to beit din.
The first Mishnah in Bava Metzia exemplifies this concern. If two people each claim full ownership of an object, the Mishnah rules that, after taking a rabbinically mandated oath, each party receives half of the disputed item. However, if one party claims to own only half of the item, then, after taking oaths to buttress their arguments, the litigant who claims the entire object receives three fourths of the object, while his adversary receives only a quarter.
If the litigants knew the Halachah in advance, the man who believes that he owns half the disputed object might be tempted to falsely state that it is entirely his, for that claim would entitle him to what he believes he truly deserves, half of the disputed item (see Tosafot s.v.V’zeh).
While training in the Jerusalem District Rabbinical Court in May 1994, I witnessed another example of why we should not brief litigants. A couple appeared in beit din, without lawyers, regarding a marital dispute. The wife demanded that beit din order her husband to give a get (divorce document), charging that he physically abused her.6We address the issue of coercing a man to give a get in our first volume (pp. 3-7). See Teshuvot Tzitz Eliezer 6:42:3 for a discussion of coercing a physically abusive husband to give a get. After she presented her argument, the beit din asked the husband for his response. He answered that he did indeed beat her, but he thought there was just cause to do so; she had a tendency to fall asleep when he delivered a d'var Torah at the family's Friday night table. Immediately, Rav Shlomo Fischer berated the husband and sternly warned him that he must give his wife a get or face a jail sentence from the beit din (see Shulchan Aruch, Even Ha’ezer 154:3).
This case was resolved extremely expediently, largely due to the absence of a lawyer. The husband presumably responded that he engaged in spouse abuse because he mistakenly believed that the beit din would condone his behavior under the circumstances he described. A to’ein might have prevented him from admitting his guilt.7See Sema (C.M. 17:14), who writes that it is easier for dayanim to clarify the truth when they hear the claims from the litigants themselves.
Conclusion
The Mishnah (Pirkei Avot 1:8) teaches that one should not act as a lawyer. Both Rashi and Rambam explain that this passage refers to coaching a litigant so he will emerge victorious in beit din. Advising the litigants interferes with the proper functioning of a beit din, which needs candid presentations from the litigants to the dayanim.
Part II: Permissible Situations
Although we have seen that many traditional sources frown upon the presence of lawyers in beit din, they have nevertheless become an integral part of many trials. In this section, we trace the development of this phenomenon.
Shevu’ot 31a
To begin our discussion, we cite at some length one last Talmudic passage that illustrates Chazal’s negative attitude towards hiring a professional representative in beit din:1We 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 litigant comes to beit din dressed in rags and the other in the finest of clothes, then the beit din orders the latter, “Either dress similarly to your adversary or give your adversary clothes of the same quality to wear”? As it says, “Avoid all falsities” (Shemot 23:7) [whereas the dayanim might judge a litigant more favorably due to his clothing]…. From where do we derive that one should not plead his case to the dayanim in the absence of the opposing litigant? [Also] as it says, “Avoid all falsities”....
[The Navi addresses] “he that does something not good among his nations (Yechezkel 18:18).” Rav says that this verse refers to one who appoints a representative [to present a case] in beit din (ba beharsha’ah).2Rav Ezra Basri (Dinei Mamonot 1:440; based on Gidulei Terumah p. 300) argues that Rav’s harsh comments do not apply to paid representatives of the litigants. Rav is criticizing those who meddle with other people’s business for no reason, whereas paid representatives (provided that they present only truthful claims) are legitimately working for their own benefit (hana’at atzman). Also see Beit She’arim (2:202) for Rav Yonah Reiss’s critique of Rav Basri’s comments. Shmuel says that it refers to a rough 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 roughness].
In this general discussion of methods to ensure a fair trial, Rav again demonstrates Chazal’s displeasure with appointing legal representatives. Rashi (s.v. Zeh) explains that the agent will not agree to a compromise (pesharah), because he is not halachically empowered to do so.3The client could reject the compromise, claiming, “I appointed you to help me, but not to hurt me.” Tosafot (s.v. Zeh), however, limit Rav’s statement, paving the way to permit appointing a to’ein under certain circumstances:
This [prohibition] applies only when he hires a violent representative or an exceedingly argumentative individual who is entering a conflict in which he should have no part. However, if the representative is working to retrieve lost money that the litigant would otherwise be incapable of retrieving, then he is performing a mitzvah.
The Rambam adopts a somewhat similar approach (Teshuvot 272, Blau edition):
In my opinion, it is forbidden to appoint a representative unless it is absolutely necessary to do so - such as if the plaintiff lives in a different city than the defendant [and is unable to come to the defendant’s city],4Halachah requires the plaintiff to present the case in the beit din in the defendant’s city (Rama, C.M. 14:1). or if the plaintiff is ill, or other similar justifiable needs.
Rav Tzvi Yehuda Ben Yaakov (Techumin 16:352) suggests that perhaps an inarticulate individual, who is incapable of competently representing his case, should also be permitted to send a representative.
Acharonim Note the Change
The Shulchan Aruch (Choshen Mishpat 123:15 and 124:1) strictly limits when a litigant may appoint a representative to plead his case in beit din. He permits only the plaintiff to send a representative, and only if he is not present in the town where the trial takes place. According to the Shulchan Aruch, the defendant may never appoint a lawyer. Since the trial takes place in a beit din in the locale of the defendant, the Shulchan Aruch does not see a legitimate reason for the defendant to appoint a lawyer. However, the Rama (based on the above-cited passage from Tosafot) disagrees and permits the plaintiff to use a lawyer even if he could attend the trial himself, provided that the lawyer seeks to help him legitimately recover his money and is not simply a combative individual meddling where he has no business.
The Shach (C.M. 124:1) notes that even the Rama, who permits a plaintiff to send a representative to a nearby beit din in his stead, forbids the plaintiff from coming to beit din himself and bringing a lawyer to coach him. Nonetheless, the Shach reports that in his time (the seventeenth century), the practice developed that a counsel routinely accompanied the plaintiff to beit din. He explains that the plaintiff can, technically, transfer title of his monetary claim to the lawyer, making the lawyer himself a litigant. This option does not exist for the defendant, so he may not appoint a lawyer.
The Aruch Hashulchan (C.M. 124:2) cites the Tumim, who notes that in his time, the practice was that even the defendant could appoint a lawyer to act on his behalf. In Israel, the batei din permit the appearance of counsel (see Takanot Hadiyun of 5753 5:41). In the United States, batei din also permit the appearance of counsel. Without the presence of people acting as lawyers, Rav Yonah Reiss (Beit She’arim 2:201) notes that civil courts will not honor a beit din’s decision, even if the litigants sign a binding arbitration agreement.
Limitations on Lawyers
Despite the eventual acceptance of lawyers in beit din proceedings, a fundamentally unfavorable attitude towards legal representation of litigants nevertheless persists. For example, the Aruch Hashulchan (ibid.) writes:
If the litigants do not appear in beit din and the beit din sees that the Halachah in the particular case cannot be determined merely with the lawyers present, the beit din may insist that the litigants themselves appear in beit din.
Moreover, the guidelines for the Israeli Rabbinate’s batei din state, “Beit din may forbid the presence of a lawyer if it sees that the lawyer is obstructing justice, fails to adhere to beit din procedures, or behaves disrespectfully towards the beit din” (Takanot Hadiyun of 5753 5:45). They further demand that the litigants plead their cases to the dayanim before their lawyers speak (6:54). Thus, the dayanim can hear the litigants speak candidly before their lawyers put a “positive spin” on their clients’ claims.
Rav Yonah Reiss (Beit She’arim 2:200-201) similarly notes that to’anim should be allowed only in cases where they are necessary. For example, there is no need for to’anim if the litigants are capable of representing themselves. Moreover, the to’anim must be known as honest individuals, and there must be some way to rescind their license should they act unscrupulously. Due to this last consideration, the Beth Din of America (Rules and Procedures, Section 12) permits only licensed attorneys to serve as to’anim.
Reasons for Change
There are a number of reasons for the trend to permit lawyers to appear in beit din. Professor Nachum Rakover (Legal Representation and Halacha p. 343) cites the Teshuvot Choshen Ha’eifod (Choshen Mishpat 43:1), who explains that it is especially important for a lawyer to represent the sides in a domestic dispute because “often the parties become emotionally overwhelmed and are unable to respond effectively.” He further notes that “it is possible to make peace when objective individuals are involved who will not hurl invectives at the other side.”5This approach appears to contradict Rashi’s explanation for Chazal’s opposition to lawyers. As we cited above, Rashi suggested that a lawyer would not compromise on behalf of his clients, lest they reject the agreement and accuse him of harming their interests. Perhaps, according to the Choshen Ha’eifod, a lawyer might successfully convince the litigant himself to compromise, even though he could not commit to a compromise without his client’s consent.
Professor Eliav Shochetman (Seder Hadin p. 68) quotes Rav Shear Yashuv Cohen (Torah Shebaal Peh 22:64) as suggesting a different approach. Rav Cohen seeks to view to’anim as officers of the beit din, assisting the dayanim to arrive at a truthful verdict. Along these lines, Rav Moshe Shternbuch (Teshuvot Vehanhagot 1:794) writes:
If the to’ein acts as many lawyers do - teaching his clients to win a case despite the fraud involved - there is no greater sin. However, if the to’ein acts like a dayan and is sincerely convinced of the correctness of his client’s position... then acting as a to’ein is certainly permissible, and even constitutes a mitzvah of helping someone retrieve a lost object, or preventing a theft.
Reb Elya Lichter suggested to me that the Shulchan Aruch (C.M. 17:9) requires the dayanim to maintain a perilously tight balance between two competing halachic principles. In order to preserve objectivity, Halachah forbids dayanim “putting words in the mouth” of a litigant (al ta’as atzm’cha k’orchei hadayanim). On the other hand, beit din must assist a litigant who is struggling to present his claim but is unable to do so (p’tach picha l’ileim). Accordingly, Reb Elya Lichter proposed that the presence of a lawyer eliminates the need for the beit din to maintain this delicate balance.
I am familiar with an interesting example of p’tach picha l’ileim that occurred when only one side brought a to’ein to beit din. A divorced couple appeared in the beit din to resolve a number of outstanding monetary disputes, including payment of the ketubah. A to’ein vigorously defended the man, who had confessed to physically abusing his ex-wife, while she came without counsel. After the woman presented her demands, the beit din saw that she knew far less than her husband’s to’ein and was thus unable to present nearly as coherent a case. The Av Beit Din (Chief Justice) then raised the possibility that she deserved the return of the money her family had paid for the couple’s wedding. Rav Moshe Feinstein (Teshuvot Igrot Moshe, Even Ha’ezer 4:8) rules that since the groom must pay for the wedding celebration (see Ketubot 10a), the money paid by the bride’s family for the wedding should be considered money that the wife brought into the marriage.6Rav Hershel Schachter (addressing a rabbinical convention of the National Council of Young Israel) reported hearing that dayanim in Israel do not accept Rav Moshe’s ruling regarding the wedding expenses. The husband must pay such funds in addition to the ketubah when the couple divorces. The beit din thus discharged its obligation of p’tach picha l’ileim, presenting a claim for thousands of dollars that the woman did not know to ask for herself.7See, however, Techumin (23:448-455), where Rav Uri Dasberg presents many limitations to the principle of p’tach picha l’ileim.
Conclusion
Halachah certainly does not view legal representation in beit din as an ideal situation. Nevertheless, various realities effected an adjustment in policy, so for at least the past hundred years, legal representation has been the norm in batei din. A compromise of sorts requires that the litigants plead first, and the counsel speaks later.