CCAR RESPONSA
Contemporary American Reform Responsa
4. Professional Secrecy and an Illegal Act
QUESTION: A lawyer has discovered that a fellow attorney is providing a client with advice which will lead to an illegal act and the possibility of considerable financial loss. The lawyer asking the question has gained this information in a confidential relationship. Should he break that confidence and inform the client in question?ANSWER: It is clear that privacy and information gained as part of a professional relationship can generally not be divulged (Lev. 19.16; Yad Hil. Deot 7), yet this prohibition is not absolute. For example, if knowledge of certain medical information might change a marriage, such information should be presented (Israel Kagan, Hofetz Hayim, Hil. Rekhilut 9). The decision is based upon the principal of the “need to know.” Such facts must not be given lightly or simply to complete existing information or for any personal gain. If such information would lead to the protection of lives or prevent personal injury and financial loss, it must be divulged in accordance with the Biblical injunction of Leviticus, “You shall not stand idly by the blood of your neighbor” (Lev. 19.16). If an individual’s life is endangered, immediate action to remove that danger must be undertaken. This was also the interpretation provided for our verse by tradition (San. 73b; Yad Hil. Rotzeah 1.13 f, 15; 4.16; Hil. San. 2.4, 5, 12; Shulhan Arukh, Hoshen Mishpat 425.10, 426.1). Maimonides considered it necessaryto move in this direction in cases of idolatry (Yad Hil. A. Z. 5.4) and rape (Yad Hil. Naarah 3.1). This would apply, however, only if the client’s life is endangered; that is not the case here. Maimonides and some others go further through the exegesis of another verse from Leviticus (19.14), “Thou shalt not place a stumbling block before the blind.” This would include reporting someone who provides incorrect advice which might lead to criminal acts or to a considerable financial loss (Yad Hil. Rotzeah 12.4; Jakob Breish, Helkat Yaaqov III 136; Elijah of Vilna, Biur Hagra, Yoreh Deah 295.2; Joshua Falk, Peri Megadim, Orah Hayim 443.5, 444.6). We must also ask about the status of attorneys in Jewish law. Generally attorneys are not used in the traditional Jewish courts, although they have sometimes been appointed by the court (Ribash Responsa #235; Meir of Rothenburg Responsa #357). In other words, the litigants and the witnesses are present in person (M. Mak 1.9; Yad Hil. San. 21.8). Exceptions are only made when the individual involved is unavoidably absent or is too timid to defend himself (Tos. to Shev. 31a; Tur Hoshen Mishpat 123.16; also Bet Yosef). When an attorney is appointed, the fiction is created that he acts entirely on his own behalf. He, therefore, has complete power of attorney for the defendant (B. K. 70a; Yad Hil. Sheluhin Veshutafin 3.7; Shulhan Arukh Hoshen Mishpat 122-123; Arukh Hashulhan Hoshen Mishpat 124). There was, in other words, a reluctance to use attorneys, but by the late Middle Ages, they have been admitted to court, especially if the parties involved were present and their reaction could be watched. Such attorneys are paid by a fee for their services (Rif, Responsa #157; Rashba, Responsa II #393, III #141, V #287, etc.). An attorney, therefore, acts as an agent andthe laws of the agency apply to him. There is a legal presumption that an agent properly performs the duties assigned to him (Git. 64a); any agent is considered to have been appointed by a client to benefit and not to harm him (Kid. 42b). In this instance, the attorney might be considered akin to both an agent and an expert. Experts who are paid for their advice are liable if their opinion proves to be wrong (B. K. 99b ff; Simon ben Zemah of Duran, Responsa II, #174). As the lawyer in question has not been ethical and has provided improper guidance to his client, it is the duty of the attorney to inform the Bar Association or other appropriate authorities of the misconduct which he suspects. This course of action should be followed in criminal and civil procedures.December 1986
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