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Communication Between Pastors and Denominational Officers

Not every conversation between clergy and denominational officials is protected by the clergy-penitent privilege.

Key point 3-07.4. In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister acting in a professional capacity as a spiritual adviser.

* The Alabama Supreme Court ruled that communications between a pastor and a denominational officer are not protected by the clergy-penitent privilege from compelled disclosure in court unless there is evidence that the pastor was speaking to the officer in his or her professional capacity as a spiritual advisor. A priest confessed to an inappropriate sexual relationship with a female member of his church (the "plaintiff"). The archbishop of the diocese achieved a confidential settlement of the plaintiff's grievances which included payment of her counseling fees, and an assurance that the priest would be removed from the ministry "for a good long period" and would receive counseling. For her part, the plaintiff agreed to keep the affair confidential, and not to pursue litigation. A year later, the plaintiff learned that the priest had returned to active ministry and had not received therapy. This caused her to suffer emotional trauma requiring additional counseling. She presented her counseling bills to the archdiocese, but it refused to pay them. Believing that the archdiocese had breached their agreement, she pursued litigation.

As the litigation progressed, the woman learned that the priest had received some counseling at a psychiatric hospital, and that he had authorized the release of the counseling records to his archbishop. As a result, the plaintiff asked the archdiocese to turn over all of these counseling records, including "complete and correct" copies of all psychological testing. The archdiocese objected on the ground that the counseling records were privileged under the clergy-penitent privilege.

The priest asserted that he had known the archbishop for many years, and that

He is both my bishop and a spiritual advisor. I have entrusted to him many confidential matters over the years concerning my vocation and calling into the priesthood, and I have had many private discussions with him concerning my spiritual growth and discernment and I have always expected these matters of utmost trust would remain confidential. I am certain he feels the same way. I signed a release authorizing my counselor to give the archbishop access to my counseling records in order to assist him in giving me personal and spiritual guidance. I do not have these records in my personal possession. I simply released them to the archbishop as a substitute for me getting the records and then forwarding them to him. I am generally familiar with the clergyman's privilege since I am a priest myself. My communications with the archbishop and my authorization for records to be released directly to him constitute communications to the archbishop in his professional capacity, as my bishop and a spiritual advisor. In my opinion, the communications are covered by the clergyman's privilege. They were made privately and it was not intended that the communications and the records related thereto be further discussed or given to any other person. The sole purpose of the communications with the archbishop [was] to advise me as my bishop and a spiritual advisor.

The plaintiff argued that the counseling records were not protected by the clergyman privilege because they were not released to the archbishop in his professional capacity as the priest's spiritual advisor but rather in his capacity as an officer of the archdiocese investigating her complaint and enforcing the agreement she had entered into with the archdiocese. The trial court ruled that the counseling records were not protected by the clergy-penitent privilege, and it ordered the archbishop to release them subject to a "protective order" prohibiting their disclosure outside of the context of the litigation. The priest appealed.

The Alabama Supreme Court began its opinion by quoting the clergy-penitent privilege under Alabama law: "If any person shall communicate with a clergyman in the clergyman's professional capacity and in a confidential manner, then that person or the clergyman shall have a privilege to refuse to disclose, and to prevent another from disclosing, that confidential communication." The court interpreted this language as imposing three requirements for the privilege to arise: "The communication must be made (1) to a clergyman, (2) in the clergyman's professional capacity, and (3) in a confidential manner." The court concluded that the first and third requirements were satisfied since the archbishop was a clergyman, and the communications between him and the priest were confidential. The remaining question, then, was whether the second requirement was met. Was the archbishop acting in his "professional capacity" as a spiritual advisor during his conversations with the priest? This requirement, the court noted, is not further defined by state law. The court construed it to mean that "the communication must be made to the clergyman in his role as a provider of spiritual care, guidance, or consolation to the individual making the communication." The court referred to the following cases which also addressed the application of the clergy-penitent privilege to communications made to a clergyman serving as both a spiritual advisor and as an administrator:

(1) Magar v. State, 826 S.W.2d 221 (Ark. 1992). The parents of two boys told their pastor that the church's music director had sexually abused their sons. The pastor confronted the music director about the allegations, and the director admitted that they were true. The Arkansas Supreme Court ruled that the conversation was "disciplinary in nature" and, therefore, was not protected by the privilege.
(2) State v. Guthrie, 627 N.W.2d 401 (S.D. 2000). A denominational officer confronted a pastor concerning allegations that the pastor was having an extramarital affair. The South Dakota Supreme Court ruled that while the pastor intended his conversation with the officer to remain confidential, the communication was not privileged because the communication was not made by the pastor when he was seeking spiritual advice or counseling. Rather, the communication was made to assist the officer in determining whether he should allow the pastor to continue in his position at the church. The court focused on the fact that the officer initiated the communication about the pastor's affair and that after the communication the officer permitted the pastor to remain in his position at the church. As a result, the court concluded that when the communication was made the pastor was not seeking spiritual advice and the officer was acting in his supervisory capacity, and therefore the communication was not privileged.
(3) Kos v. Texas, 15 S.W.3d 633 (Tex.App.2000). A Catholic priest had a conversation with another priest who had been accused of sexual misconduct. The accused priest claimed that the communication was privileged under the Texas clergy-penitent privilege which provides that confidential communications made by an individual to a clergy member acting in a professional capacity as a spiritual advisor are privileged. The communication occurred when the priest in his role as "intervenor" in cases where child abuse had been alleged confronted the accused priest about the abuse allegations. The priest testified that the communications with the accused priest were not part of a "Catholic confession" by the accused priest and that the accused priest was not seeking spiritual advice. The priest further stated that at the time of the meeting he was not concerned about the state of the accused priest's soul but was focusing on conducting a "disciplinary intervention." A Texas Court of Appeals ruled that the communications were not privileged. It concluded: "The statements [the accused priest] made were not made in an effort to obtain some sort of spiritual advice or guidance; to the contrary, the meeting was more in the nature of a disciplinary/administrative meeting, with [the intervening priest] attempting to determine what to do in the face of the abuse allegations. We note that the communications were not initiated by [the accused priest]; rather, they were initiated by [the intervening priest] for the specific purpose of obtaining information about the abuse allegations. Although it is true that [the clergyman-privilege rule] does not require for its application that the communicant be the one seeking, summoning, or soliciting the presence of the clergy, it nevertheless does require that the communications be made for the purpose of obtaining spiritual guidance or consolation. Because the communications at issue were not motivated by any religious or spiritual considerations, we conclude that [the accused priest's] statements were not addressed to [the intervening priest] in his 'professional character as a spiritual advisor.'"

The Alabama Supreme Court concluded that the counseling records in this case were not protected by the clergy-penitent privilege because the archbishop was not communicating in his professional capacity as a spiritual advisor when speaking with the priest. It observed: "The archbishop's testimony established that before, during, and after the investigation into the plaintiff's complaint against the priest, he was not acting as the priest's spiritual advisor but as an investigator looking into the plaintiff's allegations and a resolver of her complaint."

Application. This case is important for two reasons. First, it demonstrates that not every conversation between clergy and denominational officials is protected by the clergy-penitent privilege. When denominational officials speak with clergy in the course of performing investigatory or some other administrative responsibility, and not primarily as providers of spiritual counsel, the conversation may not be privileged. This means that the denominational official may be compelled to testify about the contents of that conversation in a deposition or trial. Both pastors and denominational officers often assume that their conversations are privileged, since both are members of the clergy. This case demonstrates that this is a questionable assumption in some cases.

Second, this case is important because it illustrates the importance of "protective orders." While the court ordered the archbishop to turn over his counseling notes to the plaintiff's attorney, the court granted the priest's request to issue a protective order prohibiting any dissemination of the documents outside the context of the litigation. Courts often issue such orders to protect the confidentiality of sensitive information. Before turning over any document containing sensitive information in response to a subpoena, church officials should always ask their attorneys to seek an appropriate protective order from the court. Ex parte Zoghby, 2006 WL 3239971 (Ala. 2006).

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

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