The Jewish criminal lawyer's dilemma.

• Author: Greisman, Israel M.

INTRODUCTION

When choosing a legal field in which to practice, a lawyer may try to reconcile his religious and professional obligations. (1) This Comment argues that being a criminal defense lawyer is an impractical option for a Jewish lawyer. Jewish Law (2) often conflicts with the obligations of a criminal defense lawyer. This renders the practice of criminal defense an impractical choice for Jewish lawyers.

A Jewish lawyer has obligations to God, to the Jewish people, to humanity, and to the legal profession. These obligations pull the lawyer in many different directions. (3) One can only pray for the wisdom of Solomon when trying to reconcile these potentially conflicting obligations. This dilemma prompted Professor Sadiq Reza to comment, concerning religious public defenders, that a lawyer "must be `schizophrenic,' separating his professional obligations from his religious commitments," (4) to ensure that the lawyer "remain[s] faithful to his client." (5)

Although many problems arise from being a Jewish lawyer, and specifically a Jewish criminal defense lawyer, this Comment argues that an attorney need not become "schizophrenic" (6) to reconcile his obligations with the demands of his profession. Rather, a careful analysis must be made to determine whether the specific problems can be overcome. (7) In the event that the problems facing the Jewish lawyer prove to be insurmountable, this Comment argues that the Jewish lawyer may not practice that field of law.

Part I of this Comment discusses the applicability of substantive Jewish Law outside of a Jewish court. (8) Part II analyzes general issues of Jewish Law that conflict with the duties of a criminal defense lawyer. Part III examines some common settings in criminal defense work and their ramifications under Jewish Law, and argues that in many instances it is impossible to be a criminal defense lawyer, and at the same time obey Jewish Law.

1. IS JEWISH LAW APPLICABLE WHEN PRACTICING IN A SECULAR COURT?

   The applicability of Jewish Law outside of a Jewish court (9) is a threshold inquiry that must be addressed before examining substantive law. Judaism has its own judicial system and, naturally, the law applied in a Jewish court is Jewish Law. Jewish courts have jurisdiction over all cases in which the litigants are Jewish. (10) How ever, Jewish Law is also applicable outside of Jewish courts. (11) To properly illustrate this point, a brief description of Jewish Law is appropriate.

   Judaism maintains that Jewish Law was given by God to Moses at Mount Sinai (12) and passed down from generation to generation. (13) The laws were given in the form of the written law, known as the Torah, (14) and the oral law, (15) which was later codified in the Mishna (16) and expounded upon in the Talmud. (17) The purpose of the laws was to show to you the way that you should travel upon. (18) Jewish Law is typically referred to as "Halacha," which literally translated means "the way on which one goes." (19) The laws are binding upon every Jew and may only be violated in exigent circumstances, such as when a life is in danger. (20)

   The areas covered by Jewish Law are very broad. Besides the substantive law governing the resolution of disputes between two or more parties, such as contracts, torts and property, (21) Judaism also has numerous laws that deal with one's service to God. (22) There are dietary laws that restrict what a Jew can eat, (23) Sabbath and holiday laws that restrict when a Jew can work, (24) and modesty laws that restrict how a Jew can dress. (25) There are laws that dictate how a Jew should get dressed in the morning, (26) and there is even a law mandating which shoelace to tie first. (27) The result of all these laws is, arguably, that no matter what a Jew does or where a Jew is, he or she is before God. A Jew is a Jew, and must act like one, twenty-four hours a day, seven days a week. (28)

   While one may be accurate in claiming that American law (29) is practiced mainly in American courts, the same claim could not be made about Jewish Law. Jewish Law is binding wherever God is found, in other words--everywhere. (30) Therefore, even if something would be permitted under American law, a prohibition under Jewish Law would still be binding. (31)

   Some commentators, notably Rabbi Alfred S. Cohen, have argued that even some Jewish Laws may not be binding in certain circumstances if American law is to the contrary. (32) For example, Cohen argues that the duty of confidentiality (33) may trump the Jewish Law prohibition against standing idly by while your neighbor is being harmed. (34) Cohen argues that societal considerations may weigh in favor of maintaining confidences, even in violation of religious prohibitions. (35) Regarding doctor-patient confidentiality, he argues that the proper question should be, "What would be the net result to society if troubled persons no longer had someone to help them cope with personal problems?" (36) Because medical confidentiality serves a great societal need, a doctor may be obligated to keep a confidence even if doing so would violate the Jewish Law prohibition of standing idly by while another is being harmed. (37)

   Cohen cites as a support to his position the famous case of Rabbi Meir of Rothenberg, who was captured in 1293 and refused to allow his community to ransom him (38) because allowing them to do so would only encourage future kidnappings. (39) This was true even though there is a biblical commandment to redeem captives. (40) Cohen concludes, "There are times when individual rights must be forfeited for the greater benefit of the community." (41)

   Similarly, Professor Monroe Freedman has argued that in the American adversarial judicial system, two lawyers are required to advocate the positions of their client to the best of their abilities. (42) Accordingly, an individual lawyer's personal religious obligations should be forfeited for this greater societal benefit. (43) A lawyer should adhere to the secular laws of the legal profession, even those in violation of Jewish Law, to benefit all of society. (44)

   Such a broad proposition, however, has no precedent in Jewish Law. Cohen himself admits that under Jewish Law there is no bright line rule that societal needs trump individual obligations. (45) Cohen even concedes that there is precedent supporting the proposition that a Jew may not violate Jewish Law even if there is a societal need. He quotes Maimonidies, (46) who ruled that if a town is besieged by an army that demands that one person be handed over to be killed in exchange for sparing the rest, it is impermissible to hand over the person, even though not doing so will result in the entire town being killed. (47) Thus the great societal gain derived from giving over one person is not a justification to violate the Jewish Law prohibition of handing someone over to be killed. (48)

   Therefore, there is no rule under Jewish Law that societal needs trump individual religious obligations. Even Cohen gives consideration only to those demands of the profession that are "absolutely integral to the proper function of that profession." (49) Additionally, Cohen considers the possibility that a practitioner may violate Jewish Law only where the profession is essential to the welfare of Society. (50) Even under such circumstances, there is no "hard-and-fast Rule" (51) that Jewish Law may be violated. (52)

   Moreover, Cohen does not distinguish between active (53) and passive (54) violations of a commandment. Rather, Cohen relies solely upon cases resulting in a passive violation of a commandment, (55) which come from a person's nonfeasance. (56) Maimonidies, however, illustrates an active violation of a commandment, (57) and ruled that societal needs did not trump individual religious obligations. (58)

   Because strict laws govern active violations of religious commandments, (59) there is no precedent for Cohen and Freedman's argument that societal needs should justify actively violating a commandment. Even in a situation where a societal need exists, one may not actively violate a commandment absent exigent circumstances. (60)

   In conclusion, Jewish Law is binding upon a Jewish lawyer even if secular law is different. A Jew is prohibited from actively violating Jewish Law even when this would result in a societal benefit.

2. CAN A JEW BE A CRIMINAL DEFENSE LAWYER?

   Many people view the role of a public defender as the noblest role in the legal profession. (61) Indeed, although Judaism's view may be skeptical of the role of an advocate, (62) the Jewish concepts of equal justice for the poor, (63) and love for a neighbor (64) would certainly find such a role meritorious. However, being a defense attorney presents a number of challenges that must be addressed from the standpoint of Jewish Law.

   Defense attorneys rely on numerous tactics in defending their clients. This includes attempting to suppress all evidence that could be harmful to their client, impeaching the credibility of witnesses whose testimony may be harmful to their client, and trying to establish reasonable doubt by demonstrating that someone else could have committed the crime. All this is done under the rubric of zealously defending their clients to the best of their ability. (65)

   The morality of this conduct is, however, questionable. One persuasive argument is that the needs of an adversarial system necessitate the defendant to have an adequate defense to ensure that the prosecution meets its burden of proof. (66) Thus, the availability of an adequate defense is an essential component in the judicial system.

   This argument, however, is inadequate to justify violating Jewish Law. For example, one can make a similar argument that it is essential under our adversarial system for each side to have adequate representation in a corporate or civil litigation matter. Nevertheless, even if it were in the best interest of the client for the lawyer to work all...