The rooster clucks defiant ….

As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. American Bar Association

The rooster clucks defiant, the lawyer ….s the client. Disputed legal maxim

In my life of 85 years I only rarely had occasion to engage a lawyer. All of the instances in which I did involved either real estate transactions or preparation of a will. Most of these transactions went smoothly enough, but there were exceptions. Too many of these, IMHO.

One case of malfeasance can be described simply enough. Some fifteen years ago I had a neighborhood attorney, whom I shall call Mr. A., prepare wills for Rita and me. Upon completion of this task, A. told us that he would keep the originals in his files, at no charge, so that they could always be found. Some thirteen years later we felt it necessary to revise these wills and tried to get hold of the originals. But A., who was still listed as a member of the NY bar, was nowhere to be found. He had no listed telephone, nor had he bothered to inform Appellate Division of the NY Supreme Court of his whereabouts, as by law he was obligated to do. After about a week of phoning people who had the same last name as he, I located a relative who gave me his then-current address. It took another week or ten days before I could finally wrench our wills out of him. I reported the incident to the legal disciplinary body, which, months later, administered the slightest tap on A’s wrist that it could find.

Comment: lawyers who keep your will for safekeeping do you no favor. It is a common practice whose sole purpose seems to be to ensure more legal business for the lawyer years hence. In the state of New York, the Surrogate Court will file a will for safekeeping; that, IMHO, is the logical course of action to take.

We were victims of an earlier, more complex case of attorney malfeasance twenty years ago.

The matter arose in connection with the sale of our house in Vancouver in 1991. The incident was very painful to me at the time but I cannot say that it caused me actual damage. So, as far as I am personally involved, you might say that the matter is moot. But I think that there remain issues of public concern, and it is for that reason that I am spending time on it now.

I retired from teaching at the University of British Columbia some years before, and Rita and I decided to leave Vancouver to return to New York. We sold our house in the West Point Grey section of Vancouver in March of 1991 in preparation for our return to New York on April 15. We were represented in this sale by a solo-practice neighborhood attorney (Mr. B) with whom we were acquainted because he was a “friend of a friend” (red flag !). The buyer was a member of a very prominent Canadian family and was represented by one of the most prestigious law firms in Canada (firm C.). B. is no longer listed as a member of the British Columbia bar; firm C. seems to have become even more powerful and more prominent in the intervening years, many QC’s serving among its partners (QC, Queens Counsel, is a distinction bestowed by the government upon the most prominent lawyers in Canada). I have now written to the Chair of firm C.; his reply was gracious (he had been a student of mine, it turns out), but he professed ignorance of the case.

The possession date in our transaction was March 31, 1991. On March 25, B. presented us, for the first time, with a Vendors’ Statement that included the following as Note 4:

All parties agree that the representations regarding the sale and purchase of the subject property are not merged in the formal completion of this transaction and survive the execution of the closing documents.

When I questioned B. about the meaning of this provision, he explained that I had represented the house as free from Urea-Formaldehyde Insulation (UFFI) in the pre-purchase stage of the transaction, and that this warranty of freedom from UFFI would ordinarily expire with the formal completion of the sale under the doctrine of merger. Now, B. explained, the “other side” wanted me to sign a waiver of merger so that I would continue to be liable for any UFFI found in the future, apparently in perpetuity.

I explained to B. my position as follows: 1) I had not participated in his negotiation that resulted in the drafting of this waiver, and I do not agree to it; 2) my representation regarding UFFI was made in good faith, according to the best of my knowledge and belief; 3) the buyer had inspected the house in the pre-purchase period, and had not, presumably, found any UFFI. Thereupon B. explained that if I were to demand the deletion of this Note 4, the buyer would interpret that as a sign of guilty knowledge and would back out of the deal. He also said that Note 4 was the fair thing to do. Fair to whom, I asked. I explained to him that it was his obligation to represent my interests, and, in any case, to consult me about making concessions. Nevertheless, he pressed me to sign.

My situation was as follows: my family had packed its belongings and was ready to leave Vancouver within days. To have the buyer back out of the deal at that stage would have been very inconvenient, to say the least. So I did sign, but I also wrote a letter to B. that expressed my great displeasure at his disloyal behavior. I considered it malpractice, and I also wrote to him that, in the unlikely event that his negligence result in damages to us, I would hold him responsible for these.

As it turned out, there never were any subsequent claims about UFFI at this residence, at least not as far as I was informed.

Now here are my conclusions about this affair. Points 1) and 2) are critical of my lawyer, Mr. B.; Point 3) is critical of the law firm that represented the buyer, firm C. Point 4) is critical of both. Point 5) is the most important, and relates to the problem of inequality in legal representation.

1) An attorney should not agree to concessions on behalf of a client without consulting the client.

2) An attorney should not agree to concessions which, once made by this attorney, turn out to be irreversible, even before the client is ever made aware of them.

3) The party adverse in a case like this should be mindful of the behavior of the attorney with whom it is negotiating. It should be careful not to collude with an attorney who appears to violate obligations to his own client.

4) The legitimate concerns of a buyer over possible hidden defects should be met in ways other than binding the seller in perpetuity. I understand, for instance, that it is possible to buy insurance to cover such contingency.

5) As I reconstruct the events in this transaction, it would seem that the great inequality in power and prestige between the attorneys may well have been influential in the outcome. It seems that B. may have felt powerless to stand up to the high-prestige legal team on the other side, and may, for that reason, have agreed to terms that were injurious to his own client.

My Point 5) is of course conjecture. But it might be interesting to look into the problem by consulting other Vendor Statements. How often are there non-merger clauses when the seller is a client of a high-prestige firm, compared to when the seller is represented by low-ranking lawyers ?

Meeting Nonie Darwish

Nonie Darwish
Meeting Nonie Darwish

by Abigail Rosenthal
Professor Emerita of Philosophy, Brooklyn College

On Tuesday, April the 12th, Jerry & I drove to Temple University in Philadelphia to hear Nonie Darwish, who is the author of Now They Call Me Infidel and Cruel and Usual Punishment, also the founder of “Arabs for Israel” & co-founder of “Former Muslims United.” She’d been invited by a student group at Temple which, unlike some other student clubs in recent years, did not brazenly rescind its invitation to her at the last minute. When I went over to greet her before the talk, she thought she recognized my name, something I did not expect.

Well, a person in public life has to know how to file names. In late December of 2009 and early January of 2010, I’d written letters of strong protest, and reproof in “professorial” style, to the presidents of the two student clubs (Whig-Cliosophic Society and the misnamed Tigers for Israel). I also wrote the young woman Rabbi/Executive Director of the Center for Jewish Life, Hillel at Princeton, who had been active beyond (& I would say against) the call of duty in getting those two student clubs to withdraw their invitation. The Tigers for Israel president added gratuitously defamatory explanations for extraordinary rudeness. On the same occasion, I sent indignant emails to The Daily Princetonian and the Princeton Alumni Weekly, and finally one to Nonie Darwish, closing with my “very deep regard for your courage, rationality and goodness.” But, as I’d heard nothing further, I supposed that the email to the insulted speaker might have been misaddressed.

No, apparently not. She apologized (unnecessarily) for not having answered, explaining that her world is inundated with emails. I again expressed my indignation at what had happened at Princeton (& Columbia!) and the “anticipatory dhimmitude” it represented. At those words she nodded emphatically. I added, “You are a warrior, like your poor father, but in a good cause!” The father of Nonie Darwish was a shahid (terrorist who died trying to kill Israelis and got subsequently revered as hero/martyr). We embraced.

The Hall where she spoke was large, and the meeting open to the public. There were no organized protesters. Jerry & I sat in the front row. I’ve never been at an event where the speaker was under a death threat. Purses and backpacks were not screened, but five or six security guards, one with a dog, were visible – all sitting well back from the speaker. Perhaps the somewhat unruly venting – pro and con – from the audience was triggered by displaced fear. (As if they had to shout something, since they couldn’t run and they couldn’t scream.) The speaker also had to contend with nonworking microphones & construction noises from outside the building.

Nonie Darwish began her story. She was born in Cairo in the 1950’s, and grew up in Gaza under Nasser. She lived her whole childhood in the Arab/Israeli conflict. It was the overriding subject, in schools, cartoons, media, and sermons. Her father started the fedayeen (self-sacrifice) operation whose assignment was to destroy Israel. She learned hatred and retaliation – not exactly normal lessons for children. Peace was never mentioned as a value. Only “jihad” against Jews.

“Jihad,” she explained, is not inner struggle. It is not yoga or self-analysis. In the Middle East, everyone knows what “jihad” means. It’s sharia’s obligatory war against nonMuslims, to establish Islam. The sovereignty of nonMuslim states cannot be conceded (except tactically). By the same token, international law cannot supercede sharia law. Unbelievers must either convert or agree to pay a tax, while being made to feel demeaned/humiliated. She and her school friends were filled with fear of Jews who, they were told, “love to kill Arab children.” Victimhood is essential to jihad.

After her father was killed, the family moved back to Cairo. Nasser paid them a condolence visit. This powerful man put a paternal hand against her cheek and asked, “Which of you kids will avenge your father’s death by killing Jews?” If she didn’t want to do that, she’d be considered disloyal. Noted: at that time, Israel was not in Gaza, not on the West Bank. The ideology of terrorism wasn’t caused by “occupation,” but preceded it.

Up to the age of thirty, Nonie Darwish lived under sharia. It included honor killing, FGM (Female Genital Mutilation – underwent by 90% of the women of her mother’s generation), and she thought all this was simply God’s will. She never linked it to a particular, contingent, legal code: sharia. The Cairo Declaration, endorsed by 45 Muslim countries, has affirmed that sharia supercedes any other law. When Egyptian presidential hopeful El Baradei hinted at removing this clause, rocks were thrown at him. Polls in Egypt show that 75% of the population in favor of sharia law. Nonie Darwish ran down a partial list of human rights abuses that are obligatory under sharia, with page & verse references to Reliance of the Traveler, the Cairo University of Al Azhar-authorized, portable sharia compendium for Sunni Islam. (For example, alone among the world religions, Islam legally kills apostates. This is so for all four Sunni schools of jurisprudence, and for both of the Shia schools.)

Beyond the particulars of sharia, she described the blanket of untruth and propaganda that envelops societies under this influence. A case in point: after 9/11, she telephoned about eight of her friends in Cairo to share her sense of horror and shock. Mohammed Atta, who led the attacks, was a middle class, educated Cairene. Without exception, all these friends denied that Arabs had had anything to do with the attacks, maintaining instead that it had been a Zionist conspiracy! More recently, after the Haitian earthquake, when Israel was early on scene giving its expert medical and humanitarian help, Arab TV reported that Israel went to Haiti to harvest organs! In the same vein, Arafat was supposedly killed by the Jews. No media deny these lies. They will live on in the history books of Arab countries tomorrow. So a whole culture is living on propaganda. [This listener got the sense that the Middle East is saturated, like a soaked sponge, with anti-Semitism.]

Nonie Darwish made a deliberate effort to recognize and address listeners who objected to or denounced what she had to say. She emphasized that her quarrel was with this legal system and tradition, not with Muslims as people, who include many for whom she has the greatest love and the highest respect. Nobody, she said, wants to single out or speak against particular religions. What she speaks against is a legal system. If a purported religion becomes a political actor, or a state, demanding its own legal system, claiming to supercede other legal systems, proposing to execute nonbelievers & to violate the sovereignty of nations, or the rights of groups and individuals in the Dar al Harb (the realm of war, i.e. unbelief), that religion opens itself to criticism and has no right to religious protection. Tolerance of intolerance is not a virtue. It does no favor to Muslims. Political correctness is not compassion. It is negligence.

* * *

This woman of large stature, under threat of assassination – to whom we sat near enough to be in her line of fire – impressed me very much. She is, she told me privately afterward, in contact with a number of young Egyptian women who survive by concealment or hiding. Her image follows me. I see her as a hero, one of those giants who arise out of the very cauldron of their historical situation — a figure who will not forsake the meaning of her life and the sorrows to which she bears witness. She does what the covenant obligates Jews & their spiritual descendants to do: partner with God in history.

Sir Gerald Cannot Remember

Sir Gerald Kaufman mutters “Here we are, the Jews again” as a fellow MP rises to speak, but for the life of him, Sir Gerald cannot remember a thing

Sir Gerald Kaufman, M.P.

Sir Gerald Kaufman, Jewish but, as he is happy to report, a good friend of the late Yasser Arafat, has frequently suggested that Israel is just like Nazi Germany. He has also said that while he is not overly fond of Hamas he supports it as against Israel, since, as he puts it, Hamas reminds him of the Jews who fought against the Nazis.

As is well known, it is one of the central conceits of the JAIs ( Jews Against Israel) that they and they alone love the Jews and that is why they are against the “Zionists.” Are they in fact anti-Semitic ? That is something often asked but always furiously denied by our JAIs, at least by those among them who have the ear of the press. No no no, the professed doctrine goes, we are not against the Jews, on the contrary. We are against the Zionists. Period.

Now yesterday, March 30, as the (pro-Israel) Labour MP Louise Ellman rose to speak in the House of Commons, Sir Gerald leaned over to other MP’s nearby and said: “Here we are, the Jews again.” Kaufman said later that he and Ellman often disagree. And what is it that they disagree about ? Is it that Ellman is a “Zionist” ? Well, not according to the plain language of his utterance, as it was heard by a number of MP’s. What he does not like is that she is Jewish. The fact that he himself is also Jewish makes this kind of anti-Semitism illogical, but logic is a restraint only on people who are guided by a modicum of reason.

Sir Gerald’s reasoning is poor, but so, apparently, is his memory. Interviewed by the press later, he said “I can’t remember whether I said it or not. I can’t remember every comment I said under my breath.” Nevertheless, apparently under pressure from the Labour leadership, he had the following statement released: “I regret if any remarks I made in the chamber caused offence. If they did, I apologise.” The word “if” appears not once but twice in this laconic non-apology.

Here is the story as it appears in the Jewish Chronicle.

Thanks to Paul Bogdanor for calling my attention to the incident.