The Zionist Conspiracy
Wednesday, June 14, 2006
Legal Advocacy and Halacha
My goal in litigation is to win the case and/or achieve the best possible settlement for clients.
That goal is anything but unique. Indeed, any lawyer who does not have that goal is not serving as a proper advocate for clients.
However, while zealous advocacy is expected in the secular legal system, some rabbis have indicated in a cryptic manner that this is not consistent with the demands of halacha.
Over the years, I have heard several rabbis question whether several aspects of legal practice conflict with halacha. More recently, a rabbi whom I respect suggested that according to halacha, a legal system must strive to achieve the appropriate result, and that an attorney therefore must not primarily serve as an advocate for the client, but to facilitate the equitable result.
Often, it is possible to both zealously represent a client and achieve the most equitable resolution without any conflict. But sometimes it's impossible.
For example, what if the client possesses information that is not helpful to his case? If the other side asks for that information, it generally must be provided, but if the information is not requested, it is not to be offered voluntarily. Furthermore, if the information is a communication between the attorney and the client, it is privileged and need not be provided at all even if requested.
Similarly, secular law includes many technical defenses, such as the statute of limitations, in which a claim cannot be made after a specified period has elapsed. If someone has an otherwise proper claim against one's client, but neglects to bring the claim in a timely manner, it would be legal malpractice not to assert the statute of limitations. On the other hand, perhaps the most equitable result would be for the plaintiff to be paid appropriately.
Sometimes, working toward the most fair result can result in a client getting shafted. Once, for example, a person was sued for something like $50,000. The plaintiff's lawyer indicated that his client would compromise and take less than 100 cents on the dollar. After conferring with our client, it became clear that he had indeed originally owed $50,000, but had already paid $15,000 to the plaintiff, and therefore owed $35,000. I suggested offering a certain amount, but the client, an earnest observant Jewish man, insisted on paying the full $35,000 he owed, not a penny less, and would not countenance even offering a penny less. Nor, he made clear, would he pay a penny of interest, so the settlement offer and the actual settlement would both have to be for exactly $35,000. So I went ahead, offered the plaintiff's lawyer $35,000 - every penny my client owed - and, predictably, since we offered $35,000 that lawyer responded by demanding more. Ultimately, the plaintiff took the $35,000, but not until the client had incurred relatively significant legal fees.
The typical approach, of course, is to initially demand more or offer less than the maximum amount one would take or pay in settlement. But what if, in the example set forth above, we had offered $15,000, and ultimately settled on $25,000, with the client paying $10,000 less than he really owed. A good deal like that would certainly have been appropriate from a secular perspective, but would it have been halachically problematic?
Ultimately, there are countless examples of how the duty for attorneys to zealously advocate on behalf of clients might not be consistent with achieving the fairest ultimate result. Particularly in light of the number of observant Jewish lawyers, it is to be hoped that serious halachic consideration and analysis of this important issue will be undertaken in the near future.