The Jewish Criminal Lawyer's Dilemma

Article excerpt

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.

I. 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. …