Often, when client confidentiality is found to be violated, both the courts and the pertinent professional associations impose stiff penalties. Since that is the case, according to the Avkas Rochal’s opinion, a professional is not usually obligated by the Torah to violate client confidentiality by giving testimony in Beis Din (though he certainly may, if he so chooses), because that would leave him open to being sued in the secular courts or being reprimanded by the professional association to which he belongs. The Beis Din would first have to bring the case to the secular court system and petition the court to subpoena the testimony, thereby insuring that the non-Jewish courts will not consider the witness to have breached client confidentiality.
This discussion of the Avkas Rochal’s opinion would not be complete without mentioning that it would seem that his ruling may hold true only according the majority of earlier authorities, but not according to all opinions. Specifically, the Avkas Rochal bases his ruling on the words of the Ramban and other early authorities who quote the Ramban’s opinion. However, the Ria”z and Rabbeinu Yerucham (brought in the Shiltei Geborim on Bava Kama, 24a in the pages of the Ri”f) rule differently than the Ramban. Importantly, the T’shuvos Ma’asas Moshe (Ch.M. end of siman 63), quoted in the glosses of Rabbi Akiva Eiger on Choshen Mishpat, (siman 28, Shach s.k. 2) rules that their view does constitute a valid minority opinion.
There is one final note regarding this subject. With all this talk of not being obligated to testify in Beis Din, let us not lose sight of the fact that coming to Beis Din and relating the truth to the dayanim is a great mitzvah of gemilus chesed. It is a mitzvah that cannot be refused unless there is a solid reason to think that a significant loss will occur. In principle, a Beis Din could proclaim a cherem (a kind of excommunication) on someone who refuses to release documents requested by the Beis Din without a halachically valid reason (see Choshen Mishpat 16:3 and 28:2). Furthermore, the Talmud in Bava Kama 56a states that if a witness had an obligation to testify in Beis Din on behalf of one of the litigants and did not, and consequently the judges passed down an incorrect ruling, in Heaven the witness is seen as owing the amount of money in question to the litigant that unjustly lost the case. No one wants to arrive to Heaven and find out that he has a bill which he didn’t know about and did not pay.
We all realize that we are much more objective when we are discussing someone else’s losses rather than our own. It is very hard for a person to decide for himself what is considered to be a significant loss. Furthermore, every case has to be decided on its own because no two cases are exactly alike (that’s often the way it is in Choshen Mishpat). So let’s conclude this discussion with some good advice. If you find yourself being called to Beis Din to testify, consult with a Choshen Mishpat professional. It would be the prudent thing to do.
