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Confidential and Privileged Communications - Part 2
Clergy can be liable for disclosing communications shared with them in confidence to others without the permission of the counselee.
Key point 3-08.09. Clergy can be liable for disclosing communications shared with them in confidence to others without the permission of the counselee.

* The Kansas Supreme Court ruled that a pastor and his employing church were not liable for the pastor's disclosure of confidential information obtained during marital counseling. A husband (Harold) and wife separated, and the husband sought counseling from a long-time friend (Ron) who was a seminary student and assistant pastor of a church. Ron was not an ordained minister or a licensed professional counselor, although he had completed some course work in marital counseling and had performed some counseling as part of his duties as assistant pastor.

Harold sued Ron and Ron's employing church, claiming that he had disclosed confidential information through e-mails to Harold's wife. Harold claimed that Ron was personally liable for these unauthorized disclosures (as was his church) on the basis of two grounds: (1) the clergy-penitent privilege, and (2) the fiduciary relationship between himself and Ron.

The trial court dismissed the case on the ground that the clergy-penitent privilege contained no legal cause of action for disclosure of confidential information, and that no fiduciary relationship existed between Harold and Ron. Harold did not appeal the court's ruling with regard to the clergy-penitent privilege, but did appeal the court's conclusion that no fiduciary relationship existed.

The state supreme court agreed with the trial court's decision finding no fiduciary relationship that would support liability for Ron's disclosure of confidential information. It noted that to establish a claim for breach of a fiduciary duty, Harold had to prove a fiduciary duty, a breach of that duty, and damages resulting from the breach. The court ruled that even if Ron owed a fiduciary duty toward Harold, there was no violation of such a duty. It observed:

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