Rashi seems to explain that "orchei hdayanim" is only a problem for the attorney to come to court and argue in front of the judge on his clients behalf. However, it seems clear from the gemara that even if he would not show up in court, rather just advise the client to do something that would give him a significant edge, would also be a violation (as we see from R' Yochanan). The Tosafos Yom Tov (Avos 1:8) points out that although the Ra'av seems to say that the violation is only if the attorney argues in front of the judge, from the end of his commentary we see that the issur included even legal advice. I don't know why he doesn't quote our gemara as a source for that.
Furthermore, the Tosafos Yom Tov suggests that an adam chashuv must be machmir (as explained by the Tosafos Rid that it leads to la'azus sefasayim), but one who is not an adam chashuv is allowed to serve as an attorney even for a stranger, just that he is not required to do so, but for a relative he is even required to do so. Based on this, the Tosafos Yom Tov says even as a midas chasidus one does not have to avoid serving as an attorney (so long as they are not an adam chasuv). This would be a rationale to legitimize the "to'ein" that is customarily used in batei dinim as not being a violation (so long as the to'ein is not an adam chashuv). However, he points out from Rashi 86a who seems to imply that the issur of adam chashuv is that "people will learn from him to do so even for strangers". This clearly implies that there is an issur b'etzem to be an attorney, the only heter would be for a relative, but an adam chashuv should avoid doing so even for a relative since people will learn from him and do it even for a stranger. Based on this approach, a to'ein can only work for a relative!
7 comments:
Isn't the Gemora only discussing a case where the "lawyer" is also the judge?
I made a mistake; thank you.
Some learn the Mishna in Avos that we are speaking to the judge and telling him not to be a lawyer.
What is the issur based upon?
i think it is an issur to give one side an edge since it reduces the possibility of being fair (similar to bribery). perhaps if both sides have an attorney it would be mutar (although it would still be assur for both sides to pay a bribe).
that "perhaps" will make a difference; but according to your reasoning, what would happen if there are two litigants and one is a talmid chocham and the other is an am haaretz? If you are not allowed to advise one of them, wouldn't it automatically give an unfair advantage to the talmid chocham?
according to many its only "mili d'chasidus", i don't have a maharal at home, but i will poke a guess.
knowing too many lawyers, the concept of a lawyer is that he isn't seeking the truth, but seeking to protect his clients interests. so even if technically he will be saying the truth and the argument is valid, but it isn't whats going on in the "real world". if the judges were to hear the case directly from the people involved and hear it raw and unprepared, they will really feel what went on, but once the lawyers get in you will hear a very different story albeit technically true.
anyone having experienced some form of litigation will follow me.
on a deeper level, the purpose of speech is to enforce the thought process on the world of action, meaning the process is though, speech, action. a lawyer reverses the role, he will speak based on what action he wants done.
this was the "lashon hara" of miryam, technically it wasn't lashon hara at all, but the process of her mistake mimicked that of lashon hara. But’s that for another time.
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