Confidential and Privileged Communications

A New York court ruled that two rabbis could not be sued for breaching a “duty of confidentiality” as a result of their disclosure of confidential information shared with them by a counselee.

Lightman v. Flaum, 717 N.Y.S.2d 617 (2000)

Key point. 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 New York court ruled that two rabbis could not be sued for breaching a "duty of confidentiality" as a result of their disclosure of confidential information shared with them by a counselee since there was a third person present during the counseling sessions.

In 1995, a married woman (the "plaintiff") sought counseling from two different rabbis. She shared with each of them, in separate counseling sessions, information of an extremely personal and confidential nature. The rabbis were employed by congregations that the plaintiff and her husband attended. A few months later, the plaintiff sued her husband for divorce. She also asked the court to award her custody of the couple's four minor children. In response, the husband submitted affidavits in support of his claim to the custody of his children. These affidavits were prepared by the two rabbis, and they disclosed some of the confidential information that the plaintiff had shared with them during the counseling sessions. The affidavit of one of the rabbis stated:

[The plaintiff] admitted to me that she stopped engaging in our religious purification laws since September 1995 and hence, all sexual activity has stopped by her own decision. [She also] admitted to me that she was seeing a man in a social setting and admitted, "I am doing the wrong things." I spoke to her and counseled her against this.

The affidavit of the second rabbi stated:

[The plaintiff] admitted to me that she freely stopped her religious bathing so that, she did not have to engage in any sexual relations with [her husband]. She told me she was not getting fulfillment. When I inquired what that meant, she simply answered, he doesn't relate to me. Nothing was stated that amounted to cruel conduct by [the husband]. Her religious behavior has changed. She does not want to adhere to Jewish law despite the fact that she is an Orthodox Jew and her children are being raised Orthodox as well. She has engaged in bizarre behavior. I have no loyalty to either party except to state what I observed and to issue an opinion based on those observation from a religious point of view.

Based on these affidavits, the plaintiff sued both rabbis. Her primary claim was that the clergy-penitent privilege imposes a "fiduciary duty of confidentiality" upon clergy, and that this duty is breached when clergy disclose without authorization information that was shared with them in the course of a privileged conversation. In rejecting this claim, the court simply noted that "the plaintiff's mother or a friend were present" during her conversations with the rabbis, and therefore she "failed to show that the clergy-penitent privilege was not waived by the presence of a third person during her conversations with each of the rabbis." In view of this determination the court declined to determine "whether the plaintiff stated a cognizable claim for breach of fiduciary duty."

The plaintiff also claimed that the rabbis' unauthorized disclosure of confidential information she shared with them amounted to an intentional infliction of emotional distress. Once again, the court disagreed. It noted that "the facts alleged regarding the rabbis' conduct did not rise to a level which would satisfy the 'extreme and outrageous conduct' element of such a cause of action."

Application. This case represents one of the few discussions of clergy liability for divulging confidences. A lower court had ruled in 1999 that a "duty of confidentiality" exists with respect to information shared with clergy in the course of a conversation protected by the clergy-penitent privilege, and that clergy may be sued for breaching this duty of confidentiality if they disclose confidences shared with them during a privileged conversation.

The lower court concluded that it had insufficient information to determine if the duty of confidentiality arose in this case because it did not know if "third persons" were present when the plaintiff spoke with the rabbis. If third persons were present, then the clergy-penitent privilege would not apply because the conversations would not be confidential, and no duty of confidentiality arose.

The appeals court in this case responded directly to this open question by concluding that third persons in fact were present during the plaintiff's counseling sessions with the two rabbis, and therefore those conversations were not covered by the clergy-penitent privilege. Further, the court refused to address the question of whether a "duty of confidentiality" exists that is broken whenever a member of the clergy discloses confidential information obtained in the course of a privileged conversation.

In summary, the only two states that have found clergy liable for disclosing confidential information are California and Ohio (Snyder v. Evangelical Orthodox Church, 264 Cal. Rptr. 640 (Cal. App. 1989) and Alexander v. Culp, 705 N.E.2d 378 (Ohio App. 1993). Courts in other states may reach the same conclusion. Such cases are rare, and so few courts have been called upon to address the liability of clergy for unauthorized disclosure of confidential information.

While maintaining confidences is a moral duty for clergy, it also has been deemed to be a legal duty by lower courts in California and Ohio, and may be viewed as a legal duty by the courts of other states. On the other hand, the case addressed in the previous "recent development" demonstrates that some states will reject such a conclusion, at least to the extent it is founded on the clergy-penitent privilege.

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