QUESTION
The Pension Funds Act (“Act”) contains provisions related to the recovery of pension benefits from an employee in cases where an employer has suffered a quantifiable financial loss due to the employee's admitted gross negligence. Specifically, Section 37D of the Act lists "theft, dishonesty, fraud or misconduct" as grounds for such recovery. If such a case would come to pass and the employer wishes to recover losses due to an employee’s misconduct from the employee’s pension benefit, may a lawyer ethically contend that "misconduct" under Section 37D does not inherently require an element of dishonesty, even though established case law has consistently interpreted the provision to require such an element?
ANSWER
As a general principle, a lawyer has a Halachic obligation to advance all reasonable arguments on behalf of his client, including novel interpretations of statutory language. Nevertheless, the Torah’s commandments of, “MiDvar Sheker Tirchak” – distance yourself from falsehood, and “V’Halachta Bidrachav” – and you should walk in His ways, require that a lawyer must not misrepresent the existing state of the law or advocate frivolous positions without a legitimate basis. Halachic authorities consulted by the author have clarified that it is permissible for a lawyer to be reasonably aggressive in interpreting a law, provided that the arguments are presented transparently and candidly. This approach is supported by Igros Moshe CM Vol. II #30.
Accordingly, the statute's use of “or” in the phrase "theft, dishonesty, fraud or misconduct" suggests linguistically that “misconduct” stands apart from “dishonesty.” This means an employer may seek damages from an employee’s pension benefit based on either dishonesty or misconduct—so recovery is possible for misconduct even if dishonesty is not involved.
