The Supreme Court rescinded Advocate for negligence in Oketz: “Attorney is not a detective”


Supreme Court Reversed the judgment of the District Court and ruled that attorneys representing a person who impersonated a property owner in Netanya for the purpose of selling it, would not be liable for compensation to the real owner of the property.

In 2018, Lod District Court Judge Oren Schwartz ruled that the owner of a plot of land in Netanya would be compensated in the amount of about NIS 1 million, after the plot of land he owned was sold by an impostor, without his knowledge. The amount, which consists of compensation in the amount of NIS 880,000 and interest and linkage differences from 2012, was ordered to be paid by the two attorneys who represented the impostor – the late Adv. Gil Turgeman and the late Adv. Elkana Bishitz. It should be noted that the impostor who sold the plot disappeared. Fraudulently and he was not located.

Landowner, Jacob Jacques Roth of Belgium, previously served as Vice President of the Antwerp Diamond Exchange. In 1993, he inherited a 575-square-meter plot of land from his parents at 22 Hapardes Street in Netanya, intended for ground-level construction. When he asked to sell the plot in 2013, he discovered to his surprise that the plot had already been sold, and a house was in the final stages. Through attorneys Eitan Erez and Yoav, Raz filed a claim for compensation in the amount of NIS 3.2 million against the land buyers who purchased it from the impostor, against the state (Netanya Land Registry), against the bank that gave the buyers its mortgage and against attorneys Elkana Bishitz and Gil Turgeman who handled the sale for him. The land seller, alleging that they were negligent in their duty and did not check the forged documents.

Justice Schwartz noted in the ruling that while attorneys who verify the identity of a real estate rights holder are not detectives or private investigators, they also have a duty of professional care towards third parties, and are obliged to conduct an in-depth investigation, lest they be imposters.

Judge Schwartz ruled that in this case no such inquiry was made, and therefore the attorneys violated the duty of care and acted negligently towards the plaintiff, even though he was not a client. “A lawyer who certifies a real estate transaction by virtue of the registration regulations has a general duty to act professionally, meticulously and thoroughly,” Schwartz noted. “To the extent that he does not do so, he must expect an unauthentic transaction to come out of his hands, which will cause damage to the rights holder in the real estate.”

The district court ruled that the real owner of the property had a 45% contributory fault in failing to address the fault of registering his details on the property when he inherited it. According to Schwartz, if he had done so, it would have prevented the infrastructure for the sale of the land by the impostor.

“We must be careful not to sin against the natural tendency of examining things wisely after the fact”

Supreme Court Justice Yitzhak Amit Reversed the district court ruling, holding that the attorneys were not negligent in their actions.

According to Amit, there is no doubt that a lawyer has a duty of care, but similar to the relationship between a lawyer and his client, the level of behavior required of a lawyer does not exceed the level of behavior required – according to the circumstances – of a reasonable lawyer. He said, “A ‘reasonable lawyer’ is, therefore, a lawyer who, with disclosures of ‘warning signs’, acts to remove the suspicion they arouse.”

Judge Amit rejected the district court’s ruling for the negligence of the attorneys in not noticing that the impostor’s two passports, between which there was supposed to be a 16-year gap, were quite similar.

He said, “I find it difficult to determine that it was in the photos on the passports per se to arouse Adv. Turgeman’s suspicion in real time and during normal business, and to place an ‘alarm bell’ and not even ‘warning signals’ because something is not kosher in the passport holder’s identity. A lawyer is not a border controller who is supposed to scrutinize the faces of those entering. To the borders of the state and to compare them carefully with the picture in the passport. ”

According to Amit, “When we come to examine the case before us in the speculation of tort law, we must be careful not to sin against the natural tendency of examining things according to the result test and wisely after the fact. “And not in retrospect.”

Judge Amit went on to reject the “red lights” claimed by the district court, making it clear that the said things about Adv. Bishitz or Adv. Turgeman do not detract from their obligation as attorneys: “An attorney required to identify a particular person to edit A thorough examination of the documents presented to him.

Amit added, however, that “a lawyer is not a detective or a private investigator. He does not have special technical means at his disposal to detect forgeries and impersonations, and in the absence of” warning signs “that should arouse his suspicion, he cannot be held absolutely responsible for preventing damage. And interrogating his client and verifying any statement and speech made by him, as a potential fraudster, is a decree that the legal public cannot comply with. Such a requirement is inconsistent with the normal course of business, may create undesirable delays in handling client, and disrupt lawyer-client trust. “A relationship of trust that is not based on the suspicion that a customer is a liar and a fraud.”

Judge Amit dealt with the tragic result of the verdict at the end of the verdict: “There is no denying that the result I reached is inconvenient. “But there is nothing harmful from it that can be repaid.”

However, Amit concluded that “since I do not believe that there is proof of negligence on the part of any of the parties involved, I see no alternative but to reach this conclusion.”

Justices David Mintz and Ofer Grosskopf agreed with the ruling of Yitzhak Amit.

As is his custom from time to time, Yitzhak Amit incorporated an amusing passage within the verdict. While the property owners Roth contends that the defendants should have discovered that an impostor was standing before them, the attorneys argued that he himself had not proved that he was not impersonating the registered owner. Amit wrote that “to the reader of the claim, the immortal figure of Connie Lemmel appears before the reader, who is bitter in his heart that he later impersonated him in an attempt to prevent his marriage to the rabbi’s daughter, laments in his poem: ‘They say that I, I am not, therefore I am frightened; “If I am not me, then who am I anyway?”

On the substance of the matter he wrote on this contention that there is truth in it, and it was to be expected that in circumstances in which it was alleged negligence in identifying Man Dhao as an impostor, conclusive proof would be presented as to the identity of the landowner. “However, the court was entitled, on the basis of the documents presented to it and on the basis of his impression of Mr. Roth’s testimony, to conclude that he was the real Roth, the registered owner of the land.”


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