Question: Is a lawyer liable to a client for giving him bad advice that causes the victim financial harm?
Short Answer: According to most poskim, a lawyer would not be liable for giving bad advice.
Explanation:
I. The Source
The Gemara (Bava Kama 99b) holds that an expert coin-changer who is fully knowledgeable in his field (without needing to study further) is not liable for giving bad advice on the status of a coin, although he should pay the victim, “lifnim mi’shuras ha’din.” Only a non-expert is liable for giving bad advice.
The Gemara (Bava Kama 100a) further recounts that Reish Lakish once brought a coin to Rabbi Elazar to determine whether the coin was usable. Rabbi Elazar said that the coin was fine to use, to which Reish Lakish responded that he was relying on Rabbi Elazar’s ruling. Rabbi Elazar responded that it doesn’t make a difference whether he is accurate or not, Reish Lakish has no claim against him because only Rabbi Meir holds “garmei” is liable, and we presumably do not follow Rabbi Meir. Reish Lakish, however, concludes that we do in fact follow Rabbi Meir. The Gemara is clear that we pasken like Rabbi Meir, that garmei is liable, even though the other Chachamim disagree.
II. Three Opinions
The sefer Meishiv Mishpat (2:54) notes that there are three different opinions in the Rishonim on the upshot of this Gemara with respect to giving advice on a coin.
First, the Rif (Bava Kama 35b – dapei HaRif) and the Rambam (Hilchos S’chirus 10:5) understand that there is a difference between an expert and a non-expert. The expert is only liable if he is being paid. A non-expert (or an expert who still is learning his trade) is liable even if he is offering his opinion for free, but only if he is told by the victim that he is being relied upon or the circumstances indicate as such.
Second, the Rosh (Bava Kama 9:16) agrees with the Rif and the Rambam, but he adds that a non-expert is liable even if he is not being told by the victim that he is being relied upon.
Third, the Rashba (Bava Kama ibid) holds that an expert is not liable regardless of whether he gets paid, while a non-expert is liable regardless of whether he is told that he is being relied upon.
The Shulchan Aruch (Choshen Mishpat 306:6) paskens like the Rif and the Rambam. The Rama (ibid) notes the opinion of the Rosh, but concludes like the Shulchan Aruch, that we follow the Rif and the Rambam. Notably, the Chavos Yair (64) adds that both an expert and non-expert are only liable in their respective cases where they do not stand to gain in other ways from the advice. In other words, if the advice-giver has known other motives, the recipient of the advice should have known not to rely upon his advice.
III. Advice in General
What about advice in general? It appears that we may extrapolate from the Gemara and the Shulchan Aruch that an expert who is paid to give advice but gives wrong advice is liable because of dina d’garmei. Obviously, the expert would only be liable in a case of garmei, as set forth in Article #7, mainly where (i) the damage is done by the tortfeasor, (ii) the damage occurs immediately, and (iii) the tort will surely lead to the damage.
However, if the conditions of dina d’garmei are not satisfied, there will be no liability to an advice-giver, even if he is an expert and paid for his services. Thus, the Rama (Choshen Mishpat 386:3) holds that one is not liable for giving bad advice. Presumably, this refers to a case where dina d’garmei is not satisfied. This is different from the case of the moneychanger, where presumably the damage occurs immediately and all the other criteria of garmei are satisfied.
IV. Application To Litigation
There is an interesting application of this distinction to litigation in the sefer Meishiv Shalom (Rav Yosef Shalom Feigenbaum, early 1900s, siman 174). The Meishiv Shalom was asked whether Reuven is liable for advising Shimon not to settle his dispute with Levi, as Shimon will likely win a court case against Levi, but then Shimon loses the court case. The Meishiv Shalom responded that Reuven is not liable, as this is not a case of garmei. Shimon did not lose the money immediately. This author would add that this case is also not similar to garmei because the loss is uncertain.
Similarly, Rav Moshe Feinstein zt”l (Igros Moshe, Choshen Mishpat 1:37) ruled that a manager is not liable for giving poor litigation advice to a fired employee. The case was that a fired employee was advised by his manager that the firm/boss would cover moving expenses if the employee left the firm and did not sue the firm upon being fired. The employee agreed and did not sue the firm, but the firm/boss did not pay the expenses. Rav Moshe ruled that the manager would only be liable because of garmei, but since here the damage was speculative at best – in other words, maybe the court would not award the employee such damages even if he sued – the manager was not liable.
V. Investment Advice
What about giving poor investment advice? Is this garmei?
The Meishiv Mishpat (ibid) cites the Tesuras Shai (1:141) who ruled that a person is not liable for giving bad investment advice to his friend. For example, Reuven tells Shimon that it is wise to invest with a certain individual, Levi, and that Reuven himself has previously invested his own money with Levi. Shimon listens to Reuven’s advice, but Levi loses the money or wastes it on himself. Reuven is not liable, as garmei is inapplicable here where the loss was speculative.
On the other hand, the Pischei Choshen (N’zikin 4:22, n. 77) holds that Reuven would be liable for giving bad investment advice where the investment has already gone bad at the time the advice is given. This is tantamount to immediate and sure damage, a hallmark of garmei.
VI. If Paid
The Meishiv Mishpat (ibid) suggests a novel idea, based on the words of the Tashbeitz and the Avnei Neizer. If the advice-giver is paid, but he gives bad advice, he is liable NOT because of garmei but rather because he took responsibility like a watchman. This is clear from the Tashbeitz (2:174) who implies that only a non-expert is liable because of garmei, but an expert is liable because he is like a watchman. The Avnei Neizer (Choshen Mishpat 7:19) similarly understands the moneychanger case as being liable because of the law of a watchman.
A proof to this idea is found in the sefer Divrei Yechezkel (cited in Meishiv Mishpat). He notes that the Shulchan Aruch lists the case of the moneychanger in the laws of watchman, as opposed to the laws of N’zikin. The practical import of this ruling is that a paid expert who gives bad advice is liable regardless of whether the situation is one of garmei.
VII. Teshuvos by Rav Yitzchok Zilberstein
Rav Yitzchok Zilberstein shlita has a few interesting t’shuvos on this topic.
First, Chashukei Chemed (Sukkah 34b) discusses the case where a seller of a green esrog told the buyer – in response to his question – that the way to make the esrog turn yellow is to place it in the microwave oven. This was obviously a joke. The buyer, who didn’t own a microwave oven and was not familiar with the concept, listened and placed the esrog in his friend’s microwave oven. After ruining his esrog, the buyer returned to the seller to seek his money back. Chashukei Chemed ruled that the seller was not liable, as this is not “advice” like a moneychanger, as the buyer is simply a fool.
Second, Chashukei Chemed (Beitzah 22a) discusses the case where a doctor incorrectly tells a patient he only has six months to live, and the patient thus wastes all his money thinking he must “enjoy” it now before he dies. After the patient learns that he is not actually terminally ill, he demands that the doctor pay him back for all the money he wasted. The Chashukei Chemed rules that the doctor is not liable for this bad advice, as it does not reach the level of garmei.
Third, Chashukei Chemed (Niddah 4b) discusses the case where an American gives incorrect advice to a visiting Israeli about where to park his car and the Israeli gets a ticket. The Chashukei Chemed rules that the American is not liable because this is only a grama, not garmei. The Israeli could have parked wherever he wanted.
Rabbi Ephraim Glatt, Esq. is the Associate Rabbi at the Young Israel of Kew Gardens Hills, and he is a Partner at McGrail & Bensinger LLP, specializing in commercial litigation. Questions? Comments? Email This email address is being protected from spambots. You need JavaScript enabled to view it..
