Lann v. Davis, 2001 WL 946583 (La. App. 2001)
The Clergy-Penitent Privilege Clergy can be liable for disclosing communications shared with them in confidence to others without the permission of the counselee.
A Louisiana court addressed the liability of a church and its pastor for the pastor's unauthorized disclosure of confidential information he obtained from a counselee in the course of a conversation protected by the clergy-penitent privilege.
An adult male ("Tim") received counseling from the pastor of his church "regarding resolution of conflict between himself and his sisters resulting from physical and sexual abuse conducted by their father." He also alleged that counseling sessions "involved extremely sensitive information he had not discussed with anyone for more than 25 years, with the exception of his spouse." However, Tim later discovered that his pastor "had revealed the content of his counseling sessions to other individuals." He alleged specifically that the pastor denied him a post on a church committee, saying that he "is messed up because he has been sexually abused by his father." Tim alleged that this disclosure necessitated mental counseling and medical treatment, and cost him lost earnings.
Tim sued his pastor and church on the basis of malpractice, infliction of emotional distress, and violation of the clergy privilege. The church asked the court to dismiss the lawsuit, noting that Louisiana has never recognized a cause of action for clergy malpractice. It also noted that the clergy-penitent privilege does not impose a duty on clergy to keep parishioners' problems confidential. The trial court dismissed Tim's claims, and he appealed.
The court observed, "To date, no court has acknowledged the existence of a separate cause of action for the malpractice of a clergy member while acting within a clerical capacity" since judicial review of pastoral counseling "would require the court and the jury to consider the fundamental perspective and approach to counseling inherent in the beliefs and practices of the religious denomination, in violation of the first amendment's separation of church and state." The court continued, "A pastor who provides counseling services usually does so under the aegis of his church, and is not subjected to the same standards as a state-licensed psychiatrist or social worker. Distinctively faith-based religious principles may guide pastoral counseling; courts therefore abstain from ruling on such counseling, lest they create an excessive entanglement which is prohibited by the first amendment. In short, courts have no right to interpret religious doctrines."
The court noted that to recover for intentional infliction of emotional distress Tim had to establish (1) that the conduct of the pastor was extreme and outrageous; (2) that the emotional distress he suffered was severe; and (3) that the pastor desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct." The court concluded that Tim's lawsuit "clearly does not make allegations sufficient meet these standards."
The court acknowledged that Louisiana has adopted a "clergy privilege" that specifies, "A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser." The court stressed, however, that this privilege "is limited to the admission of evidence in judicial proceedings. It does not create causes of action or other substantive rights." Therefore, Tim was not entitled to money damages as a result of the pastor's disclosure of confidential information he acquired during a conversation protected by the privilege.
Application. This case is important because it is one of the few cases to address the liability of churches and ministers for unauthorized disclosures by ministers of information shared with them in confidence. Unfortunately, such disclosures sometimes occur. According to this court, a church may not be legally liable for damages resulting from such disclosures, since (1) no court recognizes "clergy malpractice" as a viable basis for liability; (2) the requirements for proving "emotional distress" are so strict that this rarely will serve as a basis for liability; and (3) the clergy-penitent privilege is a rule of evidence and does not convey a legal right to sue for unauthorized disclosures of confidential information.
It should be noted that a few courts have disagreed with the court's conclusion regarding the clergy privilege. See the article entitled "Liability for Disclosing Confidential Information," as well as the case of Barnes v. Outlaw, 937 P.2d 323 (Ariz. App. 1996).
In summary, while the Louisiana court declined to hold ministers or churches legally liable for damages resulting from a minister's unauthorized disclosure of confidential information acquired in the course of a confidential counseling session, courts in New York and Arizona have reached the opposite conclusion. Because the precedent is so sparse and conflicting, it is our recommendation that ministers refrain from disclosing confidential information shared with them in the course of a privileged conversation without the express authorization of the counselee. In the event of an inadvertent disclosure of confidential information, ministers and churches can cite this ruling in their defense although a court may well prefer to side with the New York and Arizona rulings.