The Counseling Contract

Philip Marcus gave a talk on “Legal Aspects, Professional Ethics, and the Counseling Contract” at the Path Training Center in Jerusalem on June 19, 2017. The workshop covered the various ethical and legal issues that can arise for mental health professionals in Israel.

Undue Influence and Testamentary Capacity in Israeli Law

It may be interesting to note that the Israeli courts have developed the following criteria for assessing testamentary capacity and whether there has been undue influence on a person when making their will:

  • Dependency and independence
  • Dependency and support
  • Relationship of the testator with others and level of contact with them
  • Circumstances of making the will.
  • Attorney-General vs. Rina Marom (1993)

In each case, the court will want to know about the testator’s general level of ability to do the ordinary things of life (ADL) and in what areas the testator needed the help of the caregiver; about the level of support that the caregiver gave; and about the involvement of others in giving such support. It is important to consider whether the caregiver restricted or altogether prohibited contact between the testator and other people who were usually in contact with him/her, or insisted on being present when there was such contact; and how much, if at all, the caregiver was involved in arranging for the writing of the will and its contents.

It will also be necessary, of course, to assess the testator’s general level of competence to make a will. One of the important criteria is the level of complication of the will’s provisions – a person may be competent to make a simple will where his family situation is simple – benefiting the spouse and children only – but not where there are ex-spouses and multiple children who are not at peace with one another. He may be deemed competent where the estate consists of few items of property (a home, a bank account and life insurance), but not where there are many types of property in several locations.

It is worthwhile to investigate if, and under what circumstances, the testator gave power of attorney or signing privileges to the caregiver, and also any transactions to which the caregiver was party, in the period since the testator’s capacity started to decline, as the undue influence doctrine has been extended to inter vivos transactions.

Together with Dr. Eliezer Perl, a psychiatrist who specializes in treating the elderly, I wrote an article entitled “A Medical – Legal – Halachic Guide to Establishing Testamentary and Gift Giving Capacity”, which was published in Hebrew in Assia – The Journal of Medicine Ethics and Halacha in 2014. Click here to download the PDF version (so far, sadly, not translated into English.)

Poor Journalism: Wife’s Divorce Petition Dismissed before Abuse Incident

The following headline appeared on the Times of Israel website, attributed to JTA:

“Jerusalem rabbinical court says spousal abuse not grounds for divorce”

The article stated that the wife had applied to the Attorney General, because the Bet Din had rejected her claim for divorce, despite the fact that the husband had admitted assaulting her and had been imprisoned for 75 days.  There were quotes from lobbying organizations, alleging that the wife is an aguna, that the Bet Din paid lip service to the fight against family violence, and that the decision was reminiscent of the attitudes in surrounding countries towards wife beating and blaming the victim.

As often happens, the press report and the comments by the lobbyists reveal that none of them fully understood the material.

I have read the judgment of the Jerusalem Area Bet Din. The decision about which the complaint is made states as follows:

The Jerusalem Bet Din denied the wife’s petition for divorce on 4 July 2016 for lack of grounds, after two years of proceedings. On appeal to the Rabbinical High Court, the wife brought evidence that the husband had been found guilty, on his own admission, on 13 November 2016, of assaulting the wife on 19 August 2016 – six weeks after dismissal of the first petition. The appeal court saw fit to refer the matter back to the Jerusalem Bet Din.

The Jerusalem Bet Din decided that it was not possible to change the judgment dismissing the original petition on the basis of an event that occurred after the judgment was given. I am sure that almost all competent judges would agree that it is not possible to amend a claim after judgment has been given. Of course, the wife may file a new claim on the basis of the new evidence, or appeal the Jerusalem Bet Din decision, but the press report does not indicate if she has done so.

The comments of the Jerusalem Bet Din are also justified. The wife did not, it seems, allege violence in her original petition; there was evidence before the court which heard the criminal proceedings that the husband was suffering from psychological problems brought about by two years of divorce proceedings; the husband apologized for his “mistake”; and the Bet Din emphasized the seriousness with which it regards any violence.

However, it is not unusual for a court, in any jurisdiction, hearing divorce proceedings, to send the parties for counseling if there has been a single incident of violence and expression of regret, which may have been situational and not systematic and repeated violence, so the assumption that the Bet Din would have immediately granted the wife’s petition if she had brought proof of violence before the end of the proceedings is not necessarily correct.

I am not aware of any legal basis for the involvement of the Attorney-General in divorce proceedings. But the statement in the Times of Israel article, that the original petition was dismissed merely because of the husband’s objection, is unfounded.

The use of the term “Aguna” is also inaccurate. An Aguna is a woman, and an Agun is a man, whose spouse has disappeared, or refuses to give or receive a Get, a bill of divorce, despite a decision of the Bet Din that he or she must do so. In such a case, the court can impose severe sanctions. In a case reported last week, the Bet Din suspended a lawyer’s practicing certificate because he refused to give his wife a Get despite the order of the Bet Din. In the case under consideration, there was no such decision.

I have no interest in the case, nor do I know any of the parties. But the record should be set straight.

 

California Bill Allowing Child Witnesses – Some Thoughts

CA bill to require courts to allow  10 year old children to testify on custody

I have looked at SB 170, Section 3042 and Rule 5.250; on the face of it, the child is protected, but I understand that in California the reality is somewhat different.

There are serious concerns about the involvement of children in the court process. But in my judicial experience (over 17 years I saw hundreds of children in my chambers but NEVER in open court, and never subjected them to cross examination) I can say that in the vast majority of cases the child and the court were helped by the experience.

In Israel, family cases are heard only by a specialist court and by specialist judges, who are selected on the basis of their experience in Family Law, and commitment to sit in Family Court for several years.

Against this background the voice of the child is heard in Israeli courts in a sensitive fashion. It is exceptionally rare for a child interview to be used for fact-finding; apart from getting to know the child, and obtaining his views by open questioning and discussion, an important part of the meeting with the judge is showing the child that a real human being is handling the case, and telling the child that while his views are important, the judge, and not the child, has to decide the case. Many children are relieved to know this, and are more inclined to open up.

In particular, Family Court judges know, from in-service training and exposure to other material  and discussions with the social services support unit staff, about the various influences on the child, and how to balance the child’s views against the other material in the case.

Judges are alert to the possibility that a child has been drilled or brainwashed as to what to say. It is usually clear that a child has been prepped; and the fact that one of the parents has prepped the child usually counts against that parent in the final analysis, and may lead to specific orders as to how that parent should behave).

For anyone who wants it, I have prepared a translation of the part of the Civil Procedure Rules dealing with the meetings between the child and the court social services support unit and the judge. Contact me via this website.

February 2017

UN Security Council Resolution 2334 & Understanding Orientalism

In response to the December 23 anti-Israel UN Security Council Resolution 2334 and the Obama Administration’s decision not to use the US veto to defeat the resolution, Philip Marcus writes:

The abstention was indeed shameful and spiteful. But it is not only Obama who has been adopting an attitude against Israel and all it stands for.

From its very foundation, the UN, and many other transnational organizations (such as the EU and ICC) were based on the hubris of the Western powers, that their way of human rights and liberal democracy was the only way. Their way aimed for world peace, but assumed that all the nations of the world would agree, despite the fact that, for many religions and cultures, autocratic rule and world domination by any means, including war and terrorism, are deeply embedded, and world peace is the goal which can be achieved.

This mistaken idea has enabled the other nations cynically to exploit the Western powers, using slogans such as imperialism and colonialism to cow them into feelings of guilt, and give  excuses for, and thereby render them impotent against, terrorism and bloodshed.

This requires a fuller treatment – if I ever have time I will write an essay – but I recommend this article in the Middle East Quarterly: “Celebrating Orientalism” by Richard Landes. It describes well how Edward Said played into this hubris and cowardice, and carried with him the vast majority of academics and policy makers. He had, of course, a willing audience in the Arabists of the State Department, the British Foreign Office, and the Quai d’Orsay. Kerry and Obama swallowed it whole.

But the disgusting resolution has passed and, like everything, it is in G-d’s hands. At this time we celebrate the survival of authentic Judaism, and through it the Jewish people, despite the efforts of nations and empires innumerable. It’s sometimes tough – very tough – but no matter how hard they try, we are still here. Am Yisrael Chai – the People of Israel Live!

Minors’ Involvement in Judicial Procedures – Recorded Lecture

Philip Marcus spoke at the opening event of the 2016-17 movie series organized by Oss”im Shalom- Social Workers for Peace and Social Welfare at the Jerusalem Cinematheque on Monday 14th November, 2016. Before the screening of the movie “Nadira – Rara”, Philip Marcus gave a lecture on Minors’ Involvement in Judicial Procedures.

He was introduced by Mr. Nathan Lavon, founder and Chairman of Oss”im Shalom, and Dr. Tzafra Dweik, Chairman of the Israeli Social Workers Union also spoke.

Click here to hear the audio recording.

 

American Jewry’s Drift from Israel is about Low Self-Esteem

A number of pundits have proposed what sound like similar reasons for the divide between Israel and what is now, unfortunately, a majority of American Jews. They point to the extent to which American Jewry now identifies more with their Americanism than with their Judaism, manifested both by intermarriage and by a lack of understanding of what Israel means as a Jewish state.

I want to suggest that the reason is deeper: The loss of Jewish identity is due to an attenuation of Jewish self-esteem.

America has been very good for the Jews. The generations who arrived in the late 19th and early 20th centuries found a land of great opportunities, and their offspring benefited from access to higher education and the booming economy, such that there are few areas of life in which American Jews have failed to excel.

But the State of Israel represents the specialness of the Jewish people, which started with the patriarchs and the matriarchs, and continued through the enslavement in Egypt and the Exodus, the giving of the Torah at Sinai, and the conquest of the land of Israel. Despite millennia of exile from the land and of anti-Semitism, Jewish specialness persists to this day. None of the efforts of nation after nation have succeeded in erasing the underlying identity of the Jews, which is based on the self-esteem of each Jew and the communal self-esteem of the Jewish people.

Read the rest of this article as published on August 25, 2016, in JWeekly.com

The Abolition of Legal Aid in Family Cases in the UK

I read with dismay about the abolition of Legal Aid for most matrimonial cases in the UK.

After my admission as a solicitor in late 1995, and until my departure for Israel in summer 1978, I represented litigants in scores of cases, civil and criminal, under the legal aid scheme. I was among the founder members of the Tottenham Magistrates Court Duty Solicitor scheme, under which solicitors saw defendants who were appearing for first remand hearings, under the Green Form (which allowed us to take instruction as to the means of the defendant and do up to 25 pounds worth of work if satisfied that legal aid was justified, without referring to the law society for approval).

But much of the work was matrimonial. (If my memory of the history serves, legal aid was founded to assist in divorce proceeding for soldiers returning after service abroad in World War II, and only later expanded to cover other areas and replace the dock brief in criminal cases).

Israel has a legal aid scheme, means tested of course, and throughout my career as a lawyer I represented clients under this scheme in hundreds of cases, at all levels, including the Supreme Court. But what I have to say here also reflects my work as a judge of the Family Court, dealing with those comparatively few cases where one or both of the parties were unrepresented.

Legal Aid, if properly administered, has two great advantages in matrimonial proceedings, above and beyond representation in and of itself:

The first is that it enables young lawyers, at the start of their careers, to get valuable experience in interviewing clients and preparing pleadings, and appearing in preliminary applications, and even trials at the County Court and Domestic Proceedings Court and Magistrates Court. For myself, I can say that I learned many lessons in advocacy as a young lawyer, which I would not have learned were it not for the opportunities afforded by legal aid.

But more importantly, it saves court time, at two levels: that of the court secretariat, and that of the judicial officer.

The secretariat is relieved of the need to inspect each document filed for compliance with procedural rules and basic comprehensibility, and to explain basic principles to litigants in person.

Cases involving non-represented litigants are a colossal drain on judge time. The judicial officer is faced with claims which, if  a solicitor had been consulted, would not have been have been filed, as being contrary to the established principles of law, and defences which are clearly untenable.

But even if the case is viable, a judicial officer will have to spend much time and energy explaining each procedural stage and each evidentiary issue (some of them somewhat hard to understand even to an experienced lawyer) to the litigants, and worse than that, to assist in the presentation of the case without knowing all the facts which might have assisted one of the parties if  they had been pleaded, or about potential witnesses. In this regard, the almost impossible task of remaining impartial is exacerbated where one of the parties is represented: the unrepresented party needs even more assistance, particularly if the lawyer is less than scrupulous.

The inevitable result of removal of legal aid is a substantial increase in the workload at the administrative and the judicial level, which results in increased delays in the completion of cases; unresolved cases, especially in the matrimonial field, bring about more interlocutory application and injunction proceedings, and more stress on the minor children, who suffer most from the uncertainty and the preoccupation of the parents with the litigation. This in its train may lead to increased involvement by welfare services, with the costs that this involves. The alternative is the need for substantially increased staffing, with the associated costs. Both of these are undesirable, and increase costs to the state.

All credit is due to the judges, and especially the President of the Family Division, who have done all in their power to mitigate the effects of the cuts.

Legal aid should not be regarded as a welfare benefit that can be granted or removed according to budgetary constraints, especially where, as I point out, the saving in the cost of representation are far outweighed by the increase in cost to the state of expansion of court staffing and/or the excessive delays in finishing cases.

The state has the responsibility to provide a judicial system which answers the needs of the public. This includes representation of those who cannot afford it.

In Israel, Legal Aid is expanding its scope, specifically in the Family Law field. In the past couple of years a decision was taken to give legal aid to minors whose matters are being dealt with in the Family Court. According to set criteria the lawyer appointed decides to act as lawyer for the child (mainly older children) or to represent the child’s best interests. A manager has been appointed to deal with these cases in each district legal aid office.

Just last month, in the course of parliamentary law committee debates which led to a reform of the law regarding guardianship of disabled persons (inter alia requiring more involvement of the individual concerned and restricting the guardianship to the least injury to his autonomy), the legal aid regulations were amended to grant legal aid to these individuals.

The Israel government took these steps in recognition of their necessity in ensuring proper court action in these cases, and of the savings of court time, especially as the lawyer appointed can apply his knowledge and experience to mediation and ADR in these disputes and make of defend applications promptly and professionally.

Democracy in Turkey?

Sir

The article by Turkey’s charge d’affaires (Strength and resilience of Turkish democracy, 3 August) is based on a common misunderstanding – that democracy consists only of the holding of elections.

Many totalitarian regimes hold elections, but where the candidates are pre-selected by the existing regime, or only one party is permitted to run, or voters are intimidated by violence or the threat of it, only the most cynical would call this democracy.

Democracy requires three more elements, all of which should be safeguarded by constitutional provisions: freedom of association, including the liberty to form political parties; freedom of expression, including a free press; and above all, an independent judiciary, whose powers should include supervision of elections.

The independence of judges requires a process of selection of judges on the basis of their legal acumen and personal integrity alone, and without regard for their politics, together with tenure and a constitutionally protected ban on removal of judges (subject only to dismissal after due process, by a tribunal within the judicial system, for disciplinary infractions).

Any regime which closes newspapers and television stations, because they oppose the government, and which arrests or dismisses judges for political reasons only, has no business calling itself democratic.

 

Philip Marcus

Why are American Jews and Israel Drifting Apart?

In response to a recent article in Mosaic magazine, entitled “If American Jews and Israel are Drifting Apart, What’s the Reason?“, I wrote the following contribution:

The distinguished participants in this debate propose similar reasons for the divide between Israel and what is now, unfortunately, a majority of American Jews. They point to the extent to which Jews in America now identify more with their Americanism than with their Judaism, resulting in an attenuation of Jewish self-esteem, leading to a loss of Jewish identity, manifested both by intermarriage and by a lack of understanding of what Israel means as a Jewish state.

America has been very good for the Jews. The generations who arrived in the late 19th and early 20th centuries found a land of great opportunities, and their offspring benefited from access to higher education and the booming economy, such that there are few areas of life in which American Jews have failed to excel.

But the State of Israel represents the specialness of the Jewish people, which started with the patriarchs and the matriarchs, and has continued through the enslavement in Egypt and the Exodus, the giving of the Torah at Sinai, and the conquest of the Land of Israel, and the Temple service.  Despite millennia of exile from the Land and of antisemitism, Jewish specialness persists to this day. Despite attrition, not only by attempts at genocide, forced conversion but also by assimilation and intermarriage, the Jewish nation has survived and flourished. None of the efforts of nation after nation have succeeded in erasing the underlying identity of the Jews, which is based on the self-esteem of each Jew and the communal self-esteem of the Jewish people.

Throughout the generations and in all the places in which they lived, in the Land of Israel and around the globe, the Jews preserved and continue to preserve their particularity, by means of the use of the Hebrew language for prayer and learning, and, for the last century or so, in Israel, as the vernacular.

Authentic Judaism requires that Jews respect and draw inspiration from the past, that they live in the present and use their abilities for the benefit of mankind, and plan for the future age of the ingathering of all Jews to the Land of Israel and the restoration of the Holy Temple in Jerusalem. In this way they kept their particularistic national identity in all those centuries in which the vast majority of Jews lived outside the Land.

Authentic Judaism requires devotion of time and energy to learning and performing mitzvoth. It also requires Hebrew literacy, stable family life, and an understanding of the links between Jews of the current generation with those of all past generations and their obligations to the future and to the world. Self-esteem is created and preserved by the strong family, communal and national connections, which are ensured by common identification with the Torah. Authentic Judaism rejects postmodernism, with its distrust and deconstruction of any ideology which is clear and lasting.

In the absence of one or other of these features of Jewish identity and self-esteem, the road to assimilation and the disappearance of a connection with the State of Israel and its Jews is wide open.

Modern movements in Judaism base their content on selected ideas which are taken from parts of the Jewish sources (“prophetic Judaism”) and, translated into terms which purport to be universal, appear to be consistent with values which are deemed to be politically correct: equality, human rights, non-discrimination, internationalism and Tikkun Olam (a misrepresentation of a complicated halachic concept, by which the Rabbis of the Talmud preferred certain rabbinical interpretations over others in the light of specific exigencies).

By doing so, the adherents of these movements are deprived of exposure to the texts and ideology of Judaism, in all their depth and breadth, their dynamism and the interrelationship between each part of the Torah (in the broadest sense) and each other part. In this way, these movements deprive Jews of their self-esteem, their distinctiveness, and ultimately their identity.

Those who identify Judaism only as a national liberation movement, with Israel at the center, may become disenchanted with this or that policy of the Israel government, and their Jewish identity reveals itself only in a hubristic attempt to dictate to Israel how it should behave, usually without sufficient knowledge of or regard for the history, geography or the exigencies of daily life in Israel.

Those whose Jewish identity is centered on commemoration of the Holocaust and antisemitism have chosen a negative narrative in which a specific period of Jewish victimhood is central and Jewish self-esteem is absent. The specific antisemitism of the Nazi exterminations is often subsumed into a general universalization of racism, without a specific Jewish context.

Those whose Jewish identity is manifested only by attendance at occasional Barmitzvahs and weddings, and visiting houses of prayer once or twice a year, or eating “jewish” foods, or having a particular sense of humor, or even donating large sums to Jewish institutions, which are at most nostalgic expressions of loyalty to past generations, are unable to pass a love of Judaism and the Jewish people to their children.

Those for whom the history and authentic ethos of the Jews mean nothing will act and think no differently from the gentiles with whom they mingle, and are at risk of becoming indistinguishable from them (except to anti-Semites).

So I agree that the repair of the distancing of American Jewry from Israel requires rigorous rethinking of the relationship between each Jew and his heritage, and between him and his American identity. Reestablishment of Jewish self-esteem is the key to this.