Shabbat Rosh Hashana 5784

P'ninat Mishpat: How Much Pay for the Fired Lawyer? – part II

Case: The plaintiff (=pl) hired a lawyer (=def) to represent her in divorce proceedings and asked her to do so in Rabbinical Court. According to their first contract, the base fee was 30,000 NIS, which covered three hearings in one tribunal plus another 15,000 NIS if there are (up to two) hearings in another tribunal. Beyond that, each hearing would be 2,000 NIS. The get was done in the Rabbinical Court. Soon thereafter, def sued for support on pl’s behalf in the (secular) Court for Family Matters. Months later, the ex-husband sued for division of property in court, which pl claims caused her to be suspected of stealing from their joint account. Pl and def began to argue, and a second agreement (=scag) was made, limiting the fee to 30,000 NIS under certain circumstances. A month later, pl fired def, with various complaints. When pl asked def for relevant documentation from her tenure, def demanded she first pay 45,000 NIS, which pl paid. Because of pl’s complaints about all of def’s work, she demands return of the whole payment, and certainly beyond the 30,000 NIS agreed to in scag. Def responded that scag was not binding because she had not signed it. Additionally, pl’s father, acting as pl’s agent, signed a document at the time the documentation was returned, waiving the ability to make claims against def.

Ruling: [Last time we saw that def deserves to be paid, but according to the second agreement, only 30,000 NIS.]

Regarding the lack of signature on scag, pl said that def had written the agreement and had confirmed by email that it was binding. Def contradicted herself on whether she had written it and what it represented. If we are to say that def did not lie about scag, the apparent explanation is the following. Def was willing to forgo the 15,000 NIS already due to her only based on an understanding that pl would continue to employ her (which could later lead to additional payment). When pl fired her, she removed the idea of a discount from her mind. In any case, scag is binding, as there was no need to sign on it or make a kinyan, which is unnecessary for waiving money due (Shulchan Aruch, Choshen Mishpat 12:8). By writing and sending the agreement, def showed that she forwent the 15,000 NIS.

Regarding the father’s waiver of claims, he explained that he was forced into it in order to get the documentation, but that he had in mind that he did not have claims, not that his daughter did not have claims to have money returned. We note that the document the father signed is titled “Certification of Receiving the File” and that it is possible to explain that the lack of claims has to do with complaints about the documents received or def’s performance of her job. It did not necessarily mean that pl could not demand return of money that was overpaid. In fact, the power of attorney that pl gave her father does not appear to be beyond authority to pick up the documentation, so that he did not have authority to waive all rights. Thus, for multiple reasons the father did not preclude pl from receiving the 15,000 NIS due back to her.

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