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.
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