Playing the lawyer

In the wonderful world of Pirkei Avot, many if not most of the teachings—however clear they seem—can be understood in many different ways. For example, the first part of Yehudah ben Tabbai’s mishnah at Avot 1:8 looks like a bold assertion that one should avoid entering the legal profession. The Hebrew, אַל תַּֽעַשׂ עַצְמְךָ כְּעוֹרְכֵי הַדַּיָּנִין, means literally “Do not make yourself like a lawyer”. Some commentators are of the opinion that this means that no-one should advise litigants in a din Torah at all. Lawyers are superfluous; it is for the rabbis to establish the parameters of a dispute without external interference. Lawyers only get in the way.

Modern translations and commentaries on this teaching take a different approach, qualifying the literal meaning in order to frame it within a more specific context since, like much of the content of the first perek, it is addressed to judges. For example,

“[When serving as a judge] do not act as a lawyer” (Artscroll)

“When sitting in judgement, do not act as a counselor-at-law” (Chabad.org)

“[When sitting as a judge]. Do not act as an advocate” (Authorised Daily Prayer Book and Koren Pirkei Avot, per Rabbi Lord Sacks)

“Do not [as a judge] play the part of a counselor” (Birnbaum siddur)

This view is widely accepted today. As Rabbi S. R. Hirsch says:

“Should you be called upon to function as a judge, do not be like the legal advisers who offer to place their juridical knowledge at the service of the litigating parties”.

This is because judges need to be absolutely impartial, a point emphasised by Rabbi Marcus Lehmann.

But there is always a risk that the meaning of the mishnah will be influenced by the fact that we view it through modern eyes. Thus Rambam’s Perush Mishnayot comments on this mishnah:

עורכי הדיינין. הם אנשים שלומדים הטענות והדינין עד שיהיו בקיאים בני אדם בדיניהם

Rabbi Eliahu Touger’s translation renders this as:

“As a counsellor: [i.e. an advocate] who knows how to assert claims, who receives power of attorney to act on a person’s behalf in a dispute”.

This would appear to be more of a commentary than a translation, since it is difficult to find the words “who receives power of attorney to act on a person’s behalf” in Rambam’s words.

But not every rabbi holds that Yehudah ben Tabbai has litigation lawyers in mind when dispensing his advice. An outspoken proponent of that view is Rabbi Yaakov Hillel, Eternal Ethics From Sinai:

“Orche hadayanim, often mistakenly translated as “lawyers”, more correctly means “those who help the judges organize the legal data”.

He explains that, in the past, orche dayanim performed a recognised, legitimate function as court advisers. According to Rabbi Shlomo Zalman of Neustadt they were an early example of the mazkir bet din (“the court’s remembrancer”), who would arrange and explain the judges’ decision to the litigants. The mazkir bet din was also an adviser to the bet din, perhaps analogous to the court clerk in the United States. Neither a judge nor a lawyer for a disputant party should be tempted to play the part of a neutral, objective adviser to the court when he had a preference for one or other side of the action.

Rabbi Hillel also acknowledges that court procedures have changed since Mishnaic times:

“The orche hadayanim mentioned in the mishnah no longer function in today’s bate din. Modern times have produced a new phenomenon, that of the to’en Rabbani (rabbinical advocate). He has some knowledge of the relevant halachot and uses his professional expertise to win his client’s case in a bet din, much like a lawyer in a secular courtroom…”

In summary, I would suggest that this part of Avot 1:8 carries a message for our own time, whether it is addressed solely to judges or to lawyers in private practice: for the sake of justice and the avoidance of impropriety do not lend yourself towards support for either disputing party. Given the weight of support for the notion that a judge should not play the part of a lawyer, it seems harsh to describe “lawyer” as a mistranslation. The mishnah contains many messages and we should seek to learn something from each of them.