Shabbat Parashat Miketz 5784

P'ninat Mishpat: Fee for a Fired Toein Rabbani – part I

Case: The defendant (=def) hired the plaintiff (=pl), a toein rabbani (rabbinical court lawyer) to represent her, as she sought a get and favorable custody and financial arrangements. Def agreed orally to pay 35,000 NIS, with delayed payment, for pl’s work until the end of the process. In the first court hearing, def’s husband gave a get, and the foundations of custody and the financial matters were laid in the first two hearings. Def received all of the governmental child support (high due to special needs children), even though she worked and the two had joint custody. Child support was to be dealt with later. A few weeks after the second hearing, which included a tiny adjustment in custody, def, at the urging of her new boyfriend (=bf), fired pl (before being paid anything), replacing him with a lawyer (to receive 25,000 NIS plus VAT). Pl negotiated with bf, who eventually agreed to give pl 4,000 NIS in cash. Pl took the money, refused to sign a waiver of additional payment, and now demands 31,000 NIS plus VAT. Def counters that pl did very little, qualitatively and quantitatively, deserved to be fired, and also waived any right to additional pay, by accepting the 4,000 NIS payment.

Ruling: Pl was a kablan, a worker paid for the job, regardless of time invested. If a kablan stops working in the midst of the job, he receives the smaller of: 1) the prorated amount for the work done; 2) the pay for the whole job minus replacement cost (Shulchan Aruch, Choshen Mishpat 333:3-4). Here, the latter would leave pl with much less than he claims. However, if the employer broke the agreement without due cause, he must pay the higher of the two amounts (Rama ad loc.).

Because pl was not paid per result, def has to substantiate negligence or incompetence. Pl presented messages from def from after the get and basic agreement, expressing great appreciation of his work. We will now relate (telegraphically, in this forum) to some of def’s claims of pl’s deficiencies:

1) Pl refused to appeal the ruling to modify the custody arrangement. Def’s response – I did not refuse, just told her she needed to give due cause for an appeal. I was fired when there was still time to appeal. Decision – Since appeal on such a small adjustment seems untenable, and the new lawyer did not appeal, we reject the claim. 2) Pl was passive in the second hearing. Response – The panel warned that the lawyers would be removed if they spoke instead of the litigants. Decision – Examination of the proceedings’ minutes showed pl spoke as much as the other lawyer. Nothing seems out of line. Claim rejected. 3) Pl did not hire an actuary to check the husband’s financial claims. Response – Having a client pay for an actuary is worthwhile only when serious problems arise, which had not happened as of the firing. Ruling – No proof of negligence. 4) Def was not awarded child support; Response – Child support was set to be determined later, and could be retroactive. In the meantime, def received full government child allocation. Ruling – People can disagree about pl’s achievement, but there is no sign of negligence.

In summary, we find insufficient grounds for the firing.

We continue next time to determine how much pay pl deserves.

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