The Pursuit of Justice and Jewish Law
Halakhic Perspectives on the Legal Profession
(revised and expanded edition)

By Michael J. Broyde

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Excerpt

Lawyers, like all Jews, are prohibited from speaking falsely or derogatorily about people without just cause. Three distinctly different things are forbidden: making unflattering, but true, remarks about a person for no reason; recounting to a person gossip heard about him; and knowingly communicating false, negative statements about another.[1] Many lawyers, for whom giving advice is a central part of their professional life, must know when it is permissible (or prohibited) to repeat negative comments heard about another. The details of when this type of conduct is prohibited and when it is mandated have been addressed numerous times and are beyond the scope of this book.[2] In order for a lawyer to repeat damaging information about another, most authorities mandate that a five-part test must be satisfied. These five parts are:

      1)  The lawyer must not exaggerate the truth;
      2)  The lawyer must be motivated by a desire to aid the client;
      3)  The least damaging means must be employed;
      4)  The lawyer must instruct the client not to repeat this information to
            others;
      5)  The lawyer must contemplate his course of conduct considerably and
            only recount information that needs to be repeated.[3]

Truth-telling in Court

One particular issue, however, is unique to lawyers. When may one, in the process of litigation, expose a person's prior misdeeds to undermine the credibility of his testimony? It is accepted that a lawyer may, in the process of cross-examining a witness, subject the witness to questioning if such questioning seeks to demonstrate that the witness is not telling the truth or the complete truth, even if (or because) that embarrasses the witness.[4] However, it is prohibited for a lawyer to undermine the credibility of a witness whom the lawyer knows is telling the truth, in order to cast false doubt on the truthfulness of the testimony. That would seem to be a violation of the Bible's commandment of "distancing oneself from falsehood,"[5] as well as embarrassing another in public for no valid reason.[6] Many violations of these rules also violate the Code of Professional Responsibility for lawyers, which prohibits the presentation of ev­idence designed to mislead the jury, judge, or other litigants.[7]

A lawyer may not cooperate with a client's desire to present a defense which falsely exonerates the client in a civil matter.[8] Thus, when a client comes to a lawyer and states that he is being sued for refusing to repay a loan, and the client states that he did in fact borrow the money from the plaintiff, but the whole transaction was oral and the plaintiff cannot prove the occurrence of the loan, a lawyer may not present this defense in court since the client must actually deny the loan to triumph at law. So too, it would appear that in a civil matter a lawyer cannot seek a demurrer and then summary judgment to permanently dismiss a case based On a failure of proof on the issue of liability if he knows that money is actually owed.

On the other hand, perhaps a lawyer can aid a client in a "false defense" if the client should, in fact, fact, factually triumph and cannot prove his "true" defense, but can win on a false defense. However, this is true only if no perjury in actual court testimony is involved, as perjury is prohibited under nearly all circumstances.[9]

Indeed, while American law has no migo-like[10] alternative pleadings, and once one starts formal pleadings, one must always state the truth, there are many situations where a lawyer could assist a client in a false defense where the client maintains that an unprovable-but true-defense is present. That occurs at the vast negotiations stages of litigation, where claims are frequently settled based on the apparent (but perhaps incorrect) strength of an opponent's claim. At that stage, one could assist in a false defense designed to reach the just result.[11]

1 In Hebrew, the first is called lashon hara; the second, rekhilut and the third, motzi shem ra; see Maimonides, Deot 7:1-7, where these distinctions are clearly articulated. For the classical work on this, see generally, R. Israel Meir Kagan, Hafetz Hayyim.

2 For a general discussion of giving advice within the rubric of activity discouraged because of the mandate of Avot 1:8, see chapter two of this book.

3 R. Israel Meir Kagan, Hafetz Hayyim, Rekhilut 9:1-15 and Lashon Hara 10:1-17. There is no requirement of personal knowledge, and reliable hearsay may be repeated.

4 To rule to the contrary would prevent truth-seeking in many court proceedings, since pronouncement of a verdict frequently reveals one of the litigants to be a liar.

5 Exodus 23:7.

6 Sotah 10b; see also Bava Metzia 58b. Shevuot 30b-31a recounts examples of the obligation to distance oneself from falsehood (midvar sheker tirhak) in a legal proceeding. It is possible that it may be permitted to cast false doubt on the truthfulness of a portion of a person’s testimony, if that is needed to undermine the viability of other sections of his testimony which actually are false. For similar cases, see Shulhan Arukh, Hoshen Mishpat 4:1 and 28:11.

7 Model code of Professional Responsibility DR7-102 (A)(4).

8 A false defense is presented when a client seeks to deny liability based upon the plaintiff’s inability to prove his case in a court of law or through the client’s committing perjury. For a discussion of these issues in the context of criminal law, see chapters eleven and twelve.

9 For example, assume “A” lends “B” money without witnesses or doc­umentation, and “B” repays the loan in the same manner. In Jewish law, if “A” sues “B” alleging that “B” never repaid the loan, “B” could present the alternative defense that he never borrowed the money (if no perjury were involved) if the true defense would not triumph at law; see Shulhan Arukh, Hoshen Mishpat 4:1-2.

The classical common law example of this phenomena is referred to the “Case of the Kettle” and involves a plaintiff who sought damages for a kettle which he claimed the defendant had borrowed and cracked while using. The defendant is supposed to have pleaded in reply to the allegation that: “(1) he did not borrow the kettle; (2) the kettle was never cracked; and (3) it was cracked when he borrowed it.” For rnore on this, see Gregory Hankin, “Alternative and Hypothetical Pleadings,” Yale L.J. 33:365, 369, 373-77 (1933).

10 Unlike Jewish law, American law lacks the institution called migo, which allows a defendant to assert a false, but provable, claim in court as just that-a false but provable claim, whose viability should allow a defendant to triumph. The mechanism of migo in financial cases is commonly misunderstood by beginning students of Jewish law. Essentially, migo is a sophisti­cated pleading in the alternative, in which a defendant states that since he has a legally provable defense that would allow him to triumph in court if he wished to disregard the ethical obligation of justice, that false defense, coupled with defendant’s sincere claim that he has a truthful defense (that he cannot prove) is sufficient in Jewish law to allow the defendant to triumph. (For example, if “A” borrowed $100 from “B” without any loan documentation and repaid the loan in the same way, then when “B” sues “A” for payment of the loan, “A” would claim that he already paid the loan. The court should believe him on that unprovable claim, because he has a very strong migo claim-that he never borrowed the money-which, if he were to assert, would allow him to prevail.)

It is important to realize (and this is commonly overlooked) that in order for a migo claim to be valid, the false claim must be one that the defendant would triumph with if the case and the false defense were actually litigated in court. If the migo claim can be defeated by the plaintiff through the presentation of evidence, then it is of no value. Jewish law essentially rewards the defendant for his honesty in labeling his provable defense as false, by allowing him to press it anyway. The common law tradition in that case simply encouraged perjury. For more on this, see R. Oded Lipa Levfar, Mishpetei ha-Migo.

(The term migo is also used in the Talmud in reference to a different type of pleading. There are cases where Jewish law permits a person, in the area of ritual or personal law, to assign themselves a status that does not reflect their actual status. Thus, a person who asserts that he is divorced is treated with the strictures of one who actually is divorced even if a review of the record would lead one to conclude that this claim is false. In this situation, while the Talmud uses the same term (migo), it is referring to a completely different type of pleading issue, unrelated to the alternative fictitious pleading in civil cases addressed here. For more on this fundamental distinction, see the approbation of Rabbi Shimon Briesh, printed at page i of Mishpetei ha-Migo.)

11 The material in chapters nine and ten (which deals with oath-taking and examining witnesses) are equally applicable to the next unit (criminal law) as they are to this unit dealing with civil litigation.