ATTORNEY


ATTORNEY. Biblical law requires that "the two parties to the dispute shall appear before the Lord, before the priests or magistrates" (Deut. 19:17), i.e., in person and not by proxy. It was considered essential that the court should hear all pleadings and arguments, as well as all testimony, directly from the mouths of litigants or witnesses; even interpreters were not to be admitted (Mak. 1:9; Maim., Yad, Sanhedrin 21:8). While legal and economical developments subsequently necessitated changes in the practice of the courts, the prejudice against proxies could never be eradicated, and the courts which admitted advocates did so only by way of accommodation to a necessary evil (Meir b. Baruch of Rothenburg, Responsa (1895), 67b, no. 357). This prejudice was enhanced by the fact that those who acted as spokesmen for litigants were often found to be sly and untruthful (Isaac b. Sheshet, Responsa (1805), 125, no. 235). The Talmud applies the verse "oppressors and robbers who did that which is not good among his people" (Ezek. 18:18) to attorneys (Shevu. 31a). Furthermore, there were legal difficulties to contend with: e.g., a debtor was presumed never to be impertinent enough to prevaricate in the presence of his creditor (BK 107a, et al.), but there could not be any such presumption in the face of the creditor's attorney; or a party may have to take an *oath, which could not be administered to his proxy. The general rule that "a man's agent is as himself" (Kid. 42a) was not applied to agents for litigants – an anomaly which it has been found difficult to justify but which can be explained only by the overriding desire "to discourage litigation by outsiders" (Herzog, Instit, 1 (1936), 203 ff.).

However, ways had to be found to enable plaintiffs to be represented if injustice was to be avoided – e.g., where the plaintiff himself was absent, or where he was weak and timid and the defendant violent and powerful (Tos. to Shevu. 31a; Tur, ḤM 123:16 and Beit Yosef ibid.). Nevertheless, talmudic jurists still would not accept a power of attorney in favor of another, unless the plaintiff had therein transferred his rights in the chose in action to the attorney, so that the attorney in effect claimed in his own right (BK 70a) – not unlike the mandatum in res suam of Roman law. The result of this rule in the past was that a defendant was unable to appoint an attorney on his behalf, as he had no chose in action to transfer (Asher b. Jehiel, Tosefei Rabbenu Asher, Shevu. 30a, Sh. Ar., ḤM 124). Gulak has shown that the rule is of Babylonian origin and influenced by Babylonian laws; but it became Jewish law (Sh. Ar., ḤM 122–23). The requirements for such a transfer to be inserted in powers of attorney were in the course of time radically mitigated and Maimonides expressed regret at reforms by which purely fictitious transfers were admitted to validate powers of attorney (Maim., Yad, Sheluḥin ve-Shutafin 3:7). While transfers continued to be inserted in all powers of attorney, they were nearly always fictitious: anything the attorney recovered by virtue thereof, although ostensibly for himself, would have to be accounted for immediately to his principal (3:1).

With regard to the representation of defendants, there is a tradition in the Jerusalem Talmud that the high priest, when sued in court, could appoint an attorney (entelar) to represent him (TJ, Sanh. 2:1, 19d). Whether it was this tradition or the pressure of changing conditions, attorneys for defendants were soon admitted into the courts, and instead of powers of attorney containing the formal transfer, even oral authorization of the attorney by the defendant before the court was accepted as sufficient (Menahem b. Solomon ha-Me'iri, Beit ha-Beḥirah to Sanh. 18a). Where the parties were present in person and the court could, if necessary, administer oaths directly to them and perceive their bearing and demeanor, their being assisted by skilled pleaders was not considered too reprehensible and could even be useful (cf. Urim ve-Tummim and J.H. Epstein, Arukh ha-Shulḥan to ḤM 124). The rule then evolved that a plaintiff, by presenting his claim, submitted to the court's jurisdiction and thus also by implication submitted to its procedure, including any customary or equitable admission of defendants' attorneys (cf. Siftei Kohen, Sh. Ar., ḤM 124). But apart from custom (and equity), the purely legal position has never been resolved (see Bezalel Ashkenazi, Shitah Mekubbeẓet to BK 70a).

The stipulation of fees was regarded as an assurance of the attorney's good faith (Isaac Alfasi, Responsa (1954), 98, no. 157; Be'er Heitev to Sh. Ar., ḤM 123:10, 11), eliminating the suspicion that he might engage in champerty or unlawful enrichment. Such stipulations were usually very generously enforced by the courts (Solomon b. Abraham Adret, Responsa 2 (1811), 56a (erroneously 58), no. 393; 3 (1812), 21a, no. 141; 5 (1884), 123, no. 287.

BIBLIOGRAPHY:

Rav Ẓa'ir (Tchernowitz), in: Ha-Shilo'aḥ, 3 (1898), 418–22; Gulak, Yesodei, 4 (1922), 54–64; idem, Oẓar, 272–9; idem, Das Urkundenwesen im Talmud (1935), 137–47; S. Assaf, Battei ha-Din ve-Sidreihem Aḥarei Ḥatimat ha-Talmud (1924), 95–99; Herzog, Instit, 1 (1936), 202–11; Lipkin, in: Sinai, 30 (1951/52), 46–61; 31 (1951/52), 265–83; ET, 4 (1952), 101–4, S.v. Ba'al Din; 11 (1965), 44–48, S.V. Harsha'ah.

[Haim Hermann Cohn]


Source: Encyclopaedia Judaica. © 2008 The Gale Group. All Rights Reserved.