Beyond Orthodox Conversion to Judaism

Order in Court

Question: I am a lawyer and I sometimes receive non-religious Jewish clients. Am I allowed to represent them in court and what is the halachah if the opposition are non-religious Jews?

Answer: Defending a Jew in court generally violates the requirement to take all of one's legal disputes to bais din. There are certain exceptions to this rule, yet appearing in court is a potential Torah prohibition, and one may not do so unless he has the permission of a bais din or a rav.

Settling Out of Court

Jews are supposed to settle all of their judicial disputes in bais din. The Rambam clarifies: "Any Jew who presents his case in a secular court is considered to be a rasha (evil). By choosing to go to court, it is as if he cursed and blasphemed the Almighty and lifted his hand against the Torah of Moshe Rabbeinu" (Sanhedrin 36:7)

The Shulchan Aruch rules like the Rambam and states that even if the two parties accept the ruling of the secular court, it is forbidden to judge before them. The Rama adds that someone who goes to court should be put in cheirem for his actions (Choshen Mishpat 26:1)

All this considered, two religious Jews should definitely resolve their issues in bais din. However, many of the Jewish clientele who lawyers deal with are secular Jews, who, in most instances, will not listen to the ruling of bais din and would not even consider going to bais din. How should they act in such situations?

Bais Din or Court?

The general rule regarding all cases is that one may not go to court unless he has permission from bais din or a rav. IF both sides are observant Jews, there are very few instances in which they will be permitted to go to court. If one or both of the parties are not observant, then there are certain cases when it is permitted, as long as one received permission beforehand.

One notable exception is a case in which Torah law is more lenient towards one of the parties that the secular law system is (e.g. one will not take money from another party unless there are two kosher witnesses). Judging according to Torah law is a privilege, and not everyone is entitled to this. Chazal tell us that if a non-Jew tries to free himself from paying money by taking his case before bais din as opposed to a secular court, bais din judges him according to secular law or sends him to court (Bava Kama 113a).

Another notable exception is if one of the parties is a Jew who does not follow the rulings of the Torah in other instances. Since he does not practice Torah, he should not be eligible to the leniencies that the Torah may offer. Under such circumstances, bais din would make sure that they are judged in a secular court and not in bias din, so that they should not receive the benefits of bais din without keeping the other mitzvos of the Torah.

The halachah that a non-religious-Jew may no take advantage of bais din is not a penalty. Rather, it is a decree that since they do not keep the Torah, they are not entitled to the benefits that the Torah offers. Therefore, even though in regards to many halachos non-religious Jews are treated as tinokos shenishbu and do not get the status of a mumar (heretic), this would not change the halachah in regards to this case.

While authorities agree that a non-religious Jew may not take advantage of bais din, it is not clear how far this ruling goes. Even if a Jew does not observe the Torah, it is forbidden to steal from him. Can we send him to a secular court even if they will take money away from him that according to halachah rightfully belongs to him, if we know that the secular courts will remove it from his possession?

Rav Akiva Eiger (Mishnah, Bava Kama 1:11) says that it is forbidden to send a non-Jew or a non-religious Jew to a secular court if they will unjustly take money away from him, for this is tantamount to stealing from him. The Rambam, however, implies that in all cases it is permitted to send them to a secular court, whether it is to prevent them from unjust gain or to take money from them according to the laws of the court system (see Even Ha'azel 5:8). Since each case differs and one is potentially transgressing a Torah prohibition, each case should be judged by a rav.

Business Law

In general, a lawyer should be versed in the laws of Choshen Mishpat, Jewish business law. Otherwise, questions will come before him and he may unknowingly violate Torah prohibitions. At times, he might cause money to be unjustly taken away or given to his clients or the individuals they are up against.

Even in instances when a lawyer is allowed to go to court with a non-religious Jew, he must make sure that the party he is going up against is not a religious Jew. Losing a tremendous amount of money is not a religious Jew to come to secular court. Only a thorough knowledge of these halachos and contact with a rav will save him from transgression.