Key point 3-07.2. In order for the clergy-penitent privilege to apply there must be a communication that is made in confidence. This generally means that there are no other persons present besides the minister and counselee who can overhear the communication, and that there is an expectation that the conversation will be kept secret.
Key point 3-08.05. In most states a counselee can waive the clergy-penitent privilege by disclosing the privileged communication to someone other than the minister. In some states the minister also may waive the privilege.
A question that has remained unanswered by the courts and legislatures is whether the clergy-penitent privilege applies to electronic communications via email and cell phone.
The question is significant because, if such conversations are not privileged, then ministers can be compelled to disclose the substance of them in court.
An Oregon case sheds light on this question and provides legal support for the application of the clergy-penitent privilege to such conversations.
While the court was addressing the attorney-client privilege, its analysis should apply equally to the clergy-penitent privilege.
Background
In a commercial lawsuit alleging fraud in a real estate investment relationship, one party (the plaintiff) issued a subpoena to the other party (the defendant) seeking copies of all communications between the defendant and nine other email addresses.
The defendant sought to quash the subpoena on the ground that some of the email messages included communications with the defendant’s attorneys and were therefore protected from disclosure by the attorney-client privilege.
In response, the plaintiff argued that the email messages were not covered by the attorney-client privilege because (1) the defendant had no reasonable expectation of privacy in email communications transmitted using his employer’s email systems; and (2) even if the email messages were privileged when transmitted, that privilege had been waived when the defendants failed to delete them from his employer’s email systems before severing his employment relationship.
The Oregon Supreme Court noted that it was being asked to decide two issues:
(1) whether email messages between a client and a former attorney, sent from, and stored on, the client’s and the employer’s email system, are “confidential communications” as required by the attorney-client privilege; and,
(2) if they are, whether an employee’s act of leaving employment and, in turn, leaving those email messages on the employer’s email system constitutes a disclosure of communications and a waiver of the attorney-client privilege.
The court concluded:
As to the first issue regarding confidentiality . . . based on the text, context, and legislative history, we conclude that communications between a client and an attorney, made for the purpose of facilitating the rendition of professional legal services to the client, are presumptively confidential. The client’s mere use of an employer’s email system, without more, does not overcome that presumption of confidentiality. As to the second issue concerning waiver of privilege . . . we hold that . . . leaving the emails on the employer’s systems did not establish actual disclosure of communications—a necessary predicate to a [waiver].
What this means for churches
Conversations between pastors and others are protected by the clergy-penitent privilege from disclosure in court if the conversations are made in confidence in the course of spiritual counsel.
But what about conversations using email? Can a pastor be compelled to disclose these?
In most states there has been no definitive answer to this question, leaving pastors in doubt. That is what makes cases such as this important. They provide some support for including email conversations within the protections provided by the clergy-penitent privilege.
Clergy should note the basics regarding clergy-penitent privilege to understand the elements that will be necessary in an email communication to make it potentially privileged.
Gollersrud v. LPMC, LLC, 541 P.3d 864 (Ore. 2023).