Simon Jackson
Legal Advisor to Torah Mitzion

 

Should a lawyer, who has served a sentence of imprisonment for forging legal documents or stealing clients’ money but who has now turned over a new leaf, be entitled to continue practicing as a lawyer?

1. On the one hand, a person who commits an offence and pays the penalty imposed on him and thereby does his penance in full, or otherwise behaves in a manner that satisfies the court that he has mended his ways for the future – such a person is to be forgiven and never reminded of his earlier misdeeds; in general he becomes fit once more to fill the office in which he served when he erred. The general rule is succinctly put by the Sifri on the verse “Lest your brother shall be dishonored before your eyes” (Devarim 25:3): “Until he is flogged, the Torah calls him a wicked person (v. 2); but once he has received his punishment, he is called your brother”.

2. A responsum of 10th century leader of Ashkenazi Jewry, Rabbeinu Gershom, Meor Ha’Gola, is extremely illuminating in this respect. Rabbeinu Gershom was asked whether it was fitting for a Cohen, who had become an apostate in the past and later repented his act, to duchen and to be called up first to the Torah? Rabbeinu Gershom concludes his responsum by saying “not only are there no grounds not to restore him to his previous position, but there is explicit Biblical and Mishnaic support to restore him” for the following two reasons: (i) One is forbidden even to remind a person who has done teshuva of his former deeds (see Bava Metzia 58b); and (ii) Failure to enable a person to wipe the slate clean after his transgression will actually encourage him not to do teshuva.

3. Rav Hai Gaon, the head of the Pumbedita Yeshiva, states in one of his Responsa: “Nothing stands in the face of teshuva; rather, Hashem forgives anyone who has sincerely repented of his misdeeds and undertaken never to repeat them. And even though we as human beings are incapable of perceiving another human being’s state of mind, where a long period of time has elapsed and it is apparent that the offender has done teshuva – we accept such a person…”

4. While the above is undoubtedly true in general, there may be occasions (albeit rare) in which punishment and penance will not suffice to enable a person to be restored to his previous position of honor. These include where the offence committed is extremely severe (e.g. murder); where the officeholder is meant to serve as a personal example to others or where the position is one which demands a great degree of public confidence which has been eroded in consequence of the transgression (e.g. the President of the Sanhedrin).

5. The above instances are exceptional, but they emphasize the rule that the door is not to be bolted in the face of those who repent sincerely and honestly. Indeed, in the absence of any weighty reason to the contrary, restoration to their previous way of life, their occupation and post should be facilitated for the penitent (Israeli Supreme Court Justice, Kister J, in the case of A. v. Attorney-General (1968)).

6. In the case in question, the Israeli Supreme Court (basing itself on the above principles of Jewish Law!) ruled that the lawyer could return to his previous position after a period of two years’ suspension, because of the lapse of time between the date on which the offence was committed and the date on which the offence came to light (some 10 years later), during which period the lawyer had reformed himself and demonstrated his commitment to the integrity of the legal profession.

7. Passage of time as an indicator of genuine repentance on the part of an offender, forms the basis of the Israeli Criminal Register and Rehabilitation of Offenders Law, 5741-1981. This determines that after the passage of a certain period of time from the date of serving a criminal sentence the entry in the Register will be erased and the offender will be deemed “as if he had never been convicted.” In other words, if the previous offender is asked about his previous convictions, he can affirm that he has none!

8. Is the practice in Israel (and other Western countries) of publicizing the names of the convicted parties in court cases commendable? In light of the above, the answer is an unequivocal ‘no’: for once a person has served his sentence (and certainly where he now regrets his past misdeeds), he is entitled to be regarded as “your brother” and to have his slate wiped clean. That is the essence of teshuva. It would be far more moral in this regard merely to refer to court cases by numbers (as is the practice in some countries), rather than using the names of the parties.

 

[Sources: Prof N. Rakover in (a) Modern Applications of Jewish Law, pp. 167-169; (b) “Teshuva – Legal Aspects” Israel Ministry of Justice Parshat Hashavua sheet, 5761, No. 43;(c) Jewish Law in the Debates of the Knesset, Prof. N. Rakover, p. 570]