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Review Essay: Reflections on the American Jewish Lawyer

Published online by Cambridge University Press:  24 April 2015

Russell G. Pearce
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Type
Review Essays and Book Reviews
Information
Journal of Law and Religion , Volume 17 , 2002 , pp. 179 - 188
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2002

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References

1. For example, “by the late 1960s 20% of America's 350,000 lawyers were Jewish,” Lawyers, , 10 Ency. Judaica Lawyers 1490, 1505 (Macmillan Co. 1971)Google Scholar, while the Jewish population of the United States in 1970 was only approximately 3.0 %. 1 Historical Statistics of the United States: Colonial Times to 1970, Part I 8, 391 (U.S. Dept. of Commerce 1975)Google Scholar.

2. The Jewish tradition is that God revealed to Moses at Sinai the Written Law, or the Torah, and the Oral Law, consisting of “interpretation of the written law” passed down through the sages. 7 Ency. Judaica Halakaha 1156, 1158, 1161 (Macmillan Co. 1971)Google Scholar. The first written codification of the Oral Law is the Mishnah, edited by Rabbi Judah the Prince “[a]t the end of the second century.” Id. at 1163. The major commentaries on the Mishnah are the Babylonian Talmud and the Jerusalem Talmud, of which the Babylonian is more authoritative. Id. at 1164.

3. Orthodox Jews view that halakhah as binding and subject to the authority of Orthodox Rabbinic authorities. Reform Jews reject the binding authority of halakhah, but find it persuasive. Conservative Jews apply a more flexible construction of halakhah than Orthodox Jews. Halakha, supra n. 3, at 1166. Reconstructionists reject the binding authority of halakha, but are nonetheless more deferential to it than Reform Jews.

4. Although estimates of the affiliations of American Jews vary, authoritative sources suggest that a large majority of Jews are not Orthodox. For example, according to the 1990 National Jewish Population Survey, only 41% of American Jews are affiliated with a synagogue. Chanes, Jerome A., A Primer on the American Jewish Community, 3 <http://www.ajc.ore/InTheMedia/Publications.asp?did+132> 9 (accessed Feb. 16, 2002)+9+(accessed+Feb.+16,+2002)>Google Scholar. Jerome Chanes notes that “[o]f those American Jews who belong to synagogues, approximately 47 percent affiliate with the Conservative movement, 36 percent with Reform, 15% with orthodoxy, and 2 percent with Reconstructionism.” Id. The 1992 American Jewish Yearbook had estimated the percentages as 38% Reform, 35% Conservative, 6% Orthodox, and 1% Reconstructionist. American Jewish Yearbook vol. 92, 132 (Singer, David ed., The American Jewish Committee 1992)Google Scholar.

5. For another treatment of this issue, see Levinson, Sanford, Identifying the Jewish Lawyer: Reflections on the Construction of Professional Identity, 14 Cardozo L. Rev. 1577, 1597–1600 (1993) (citing a number of secondary sources)Google Scholar.

6. Pirke Avot, literally “sayings of the fathers,” contains the “‘sayings’ of the first ‘fathers’ of [rabbinic] Judaism.” Pirke Avot: A Modern Commentary on Jewish Ethics xi (Kravitz, Leonard & Olitzky, Kerry M. trans. & eds., UAHC Press 1993)Google Scholar.

7. (quoting Pirke Avot 1:8). Broyde's translation of the entire provision is as follows: Do not act like lawyers [lit: arrangers of the law; in Hebrew, orkhei hadayanim]; when litigants are in front of you they should be considered as guilty; once they have been dismissed from the court, they should be in your eyes as innocent, provided that they accepted the judgement. (Id.)

Broyde explains that the direction not to act like a lawyer has been construed to admonish judges to “treat litigants in an evenhanded manner,” (Id.) except where they require help in expressing themselves as in the case of a “mute.” Id. at 13.

8. (quoting Ketubot 52b). For an explanation of the implications of Yohanan's advice, see Broyd at 15-16.

9. Broyde notes that Jewish law contrasts with the common law notion of champerty. Id. at 18, n. 29, and may require a different standard in pro bono matters. Id. at 19, n. 31.

10. Where a beit din has accepted jurisdiction of a dispute and ordered the parties to appear, the requirement of complying with enforcement of the ruling of a beit din would prohibit the lawyer from assisting the client in secular court. Id. at 65.

11. Sanford Levinson notes, for example, that while the Israeli Rabbinic Courts permit advocates, they have “no notion that ‘due process’ requires” permitting a party representation. Levinson, supra n. 5, at 1600.

12. Pearce, Russell G., The Jewish Lawyer's Question, 27 Tex. Tech. L. Rev. 1259, 1261 (1996)Google Scholar.

13. Id. at 1260.

14. Id. at 1266-1267.

15. For examples of such approaches, see e.g. Rackman, Joseph, Who Cares Who Wrote the Bible?, Jewish Spectator, Summer 2001, at 18, 19Google Scholar (asserting from the perspective of an Orthodox Jewish lawyer that the creation story in Genesis promotes the values “of human dignity, equality and respect for the environment”); Broyde, Michael J., Jews, Public Policy and Civil Rights: A Religious Jewish Perspective, <http://www.jlaw.com/Articles/jewspublic.html> (accessed Feb. 16, 2002)+(accessed+Feb.+16,+2002)>Google Scholar (arguing that although Judaism prohibits homosexuality, the Jewish position in a pluralistic, secular society should be to endorse equal rights for homosexuals); Pearce, Russell G., Learning from the Unpleasant Truths of Interfaith Conversation: William Stringfellow's Lessons for the Jewish Lawyer, 38 Catholic Lawyer 255, 261–262 (1998)Google Scholar (suggesting that, despite precedent to the contrary, the concept that all people are created in God's image could provide the foundation for a Jewish conception of civil rights under law and particularly an equal right to marriage for lesbians and gays).

16. Indeed, the Satmar, one of the largest ultra-Orthodox communities, rejects Auerbach's equation between the conception of “holy land” and the State of Israel. They oppose Zionism on the ground that the Jewish nation of Israel will not be reestablished until the arrival of the messiah.

17. See e.g. Allegretti, Joseph, Christ and the Code: The Dilemma of the Christian Attorney, 34 Catholic Lawyer 131 (1988)Google Scholar.

18. The Pirkei Avos Treasury: Ethics of the Fathers: The Sages' Guide to Living (Moshe, Lieber & Nosson, Scherman eds., Mesorah Publications 1996)Google Scholar. Rav makes clear that this provision applies to non-Jewish governments. Id. at 3.2 commentary. Another commentary notes the parallel between these sentiment and the political philosophy of Thomas Hobbes. Pirkei Avot, supra n. 10, at 37.

19. Treasury, supra n. 39, at 3:2 commentary.

20. Id. at 2:3.

21. Id. at 2:3 commentary.

22. Pearce, supra n. 32, at 1267-1270.

23. (quoting Exod 23:7).

24. The prohibition on embarrassing someone publicly also supports this position.

25. (quoting Lev 19:16).

26. His analysis relies, in part, on the mistaken understanding that the ethical rules “do not have the status of ‘law’ in America.” Broyd at 29, n. 17. See Pearce, Russell G., To Save a Life: Why A Rabbi and A Jewish Lawyer Must Disclose a Client Confidence, 29 Loyola L.A. L. Rev. 1771, 1774 (1996)Google Scholar. This might require greater deference to the ethical codes under the principal of “dina de-malkhuta dina, ‘the law of the land is the law.’” Id. at 1773-1774.

27. Indeed, the Jewish lawyer has the obligation “to engage in admonition—in Hebrew, tokhahah—when one sees a Jew violating a Jewish law.” Broyd at 31. The exceptions to this obligation occur where “a Jewish client … is completely indifferent to Jewish law.” Id. at 33; when a Jewish client “has considered Jewish law” and decided that his action is not a violation. Id. at 34; and, in some cases, where the admonition will cause the lawyer economic harm. Id. at 36. While the duty to admonish does not apply to a non—Jew. Id. at 31, n. 1, at least one influential authority—the recently deceased Lubavitch Rebbe Menachem Mendel Schneerson—opined that Jews have an “‘obligation.’” Id. at 61, to encourage non-Jews to refrain from violating the seven Noachide laws which apply to them: “idol worship, taking the Lord's name in vain, murder, prohibited sexual activity, theft, eating flesh from a living animal, and” complying with law. Id. at 61, n. 26.

28. For example, Orthodox Jewish scholars Steve Resnicoff and Mordecai Biser have disputed some of Broyde's conclusions. See Biser, Mordecai, Can an Observant Jew Practice Law? A Look at Some Halakhic Problems, 11 Jewish Law Annual 101 (1994)Google Scholar; Resnicoff, Steven H., A Jewish Look at Lawyering Ethics—A Preliminary Essay, 15 Touro L. Rev. 73, 80 n. 18 (1998)Google Scholar.

29. These include his prohibition of helping preserve an interfaith marriage and his limiting the concept of “neighbor” to a Jew. See e.g. The Torah: A Modern Commentary 892–893 (Plaut, Gunther ed., Union of Am. Hebrew Congregations 1981) (construing neighbor to include all people)Google Scholar.

30. (quoting Deut 16:20).

31. Levine, Samuel J., The Broad Life of the Jewish Lawyer: Integrating Spirituality, Scholarship and Profession, 27 Tex. Tech. L. Rev. 1199 (1996)Google Scholar; Pearce, supra n. 31.