Confidential and Privileged Communications – Part 1

Pastors who know that a meeting is being secretly tape recorded may be personally liable on the basis of fraudulent concealment.

Key point. Pastors who know that a meeting is being secretly tape recorded may be personally liable on the basis of fraudulent concealment if they fail to disclose to all parties that the meeting is being recorded.

The Mississippi Supreme Court ruled that a pastor could be liable on the basis of fraudulent concealment for attending a meeting between a married couple that was being secretly recorded, with his knowledge, by the husband in order to obtain evidence for a subsequent divorce proceeding.

Pastor Terry served as senior pastor of a local church in which a married couple (Ray and Julie) were members. Julie was an active, lifelong member of the church. Pastor Terry officiated at Ray and Julie's wedding, baptized both of their children, and considered Ray and Julie to be close personal friends.

Ray learned that Julie was involved in an adulterous affair, and asked Pastor Terry to be present when he confronted her about it. Ray informed Pastor Terry that he intended to record the conversation on the advice of a divorce attorney in order to obtain evidence that could be used in persuading Julie to agree to a no-fault divorce. The meeting took place in Ray and Julie's home. Julie did not know that Ray was recording the meeting nor was she aware that the purpose of the meeting was to confront her with her purported infidelity. Ray later testified in a deposition that he told Julie that he "wanted to talk to her about something important with Pastor Terry present." Ray also testified that he believed Pastor Terry's presence "could possibly help save the marriage." However, Ray acknowledged that "this meeting was not in any way a counseling session."

During the meeting Ray presented Julie with three options: save the marriage, no-fault divorce, or "we go to war" which would include an "alienation of affection" lawsuit against her alleged paramour. The first option was instantly dismissed by Julie, and it immediately became apparent that custody of the children would be a major point of disagreement. Julie expressed confusion as to why Pastor Terry was present. The pastor responded that he was there for Ray and at other times for both of them.

Julie was combative and used profanity during the course of this confrontation and begged and pleaded for custody of her children. At one point, Pastor Terry sent Ray out of the room. With Julie still upset, Pastor Terry assured Julie that he was not there to ambush her, that he was there by her side, and that she was not alone. Soon afterwards, Pastor Terry left the home. Julie claimed that following the meeting Pastor Terry "told several other people" of the conversation regarding Julie's infidelity.

Ray filed for divorce, which resulted in costly and protracted litigation. Although the transcript of the tape recording was not introduced as evidence, one of Ray's witnesses used the transcript in reaching the conclusion that Ray was the more stable parent and should have custody of the children. Ray was awarded legal custody of the children, with both parties gaining joint physical custody. During the divorce proceedings Julie learned that the meeting with her husband and Pastor Terry had been secretly tape recorded. She later sued Pastor Terry, her church, and a regional denominational agency, alleging breach of fiduciary duty, fraudulent concealment, negligent misrepresentation, invasion of privacy, emotional distress, negligent retention and supervision of clergy, and clergy malpractice. A trial court dismissed all claims except the fraudulent concealment claim against Pastor Terry, and both parties filed appeals with the state supreme court,

first amendment issues

The state supreme court ruled that the first amendment religion clauses did not prevent it from resolving Julie's claims so long as it could do so "without pressing into ecclesiastical matters." The church defendants vigorously argued that this was an ecclesiastical matter and that the court should decline to hear it, while Julie insisted that Pastor Terry's actions "had no ecclesiastical justification." The court concluded that the first amendment did not bar it from resolving the dispute:

A review of the transcript reveals no discussion of the Scriptures or religion and only one mention of God. Rather, the conversation was explosive in that it was one man confronting his wife with knowledge of her purported infidelity without any notice to her as to what the arranged meeting was about, and this conversation took place in the presence of another man, who apparently had been through some sort of similar experience. The transcript does not reveal marital counseling by Pastor Terry, but rather a confrontation initiated by Ray in an effort to get his wife to admit to an adulterous affair. The wife, reacting to being "backed into a corner," lashed out at times and at other times pleaded that her husband not take the children away from her. Other than the fact that the third person present was a pastor, there is no indication of any spiritual or other counseling occurring.

fiduciary duty

Julie claimed that Pastor Terry breached a fiduciary duty that he owed her as a member of his congregation by participating in the secret tape recording of the meeting with her husband. The court concluded that "a pastor's position alone is insufficient to establish a fiduciary relationship, for "if this court were to recognize such a duty on the basis of a position held within the church, we would necessarily be required to define a reasonable duty standard and to evaluate Pastor Terry's conduct compared to that standard. To do so would violate the first amendment."

However, the court acknowledged that a fiduciary duty may arise if a church member places "trust or confidence" in a pastor, or is "dependent" upon a pastor. The court concluded that this test was not met in this case since there was no evidence that Julie was dependent on Pastor Terry, or had placed any special trust or confidence in him. In particular, the court noted that Pastor Terry was not acting as a spiritual advisor or counselor to Julie during the meeting at which she confessed to adultery.

fraudulent concealment

The trial court ruled that Pastor Terry could be found liable on the basis of fraudulent concealment for knowingly participating in the secret tape recording of the meeting with Ray and Julie. On appeal, Pastor Terry insisted that he did not have a duty to inform Julie that Ray was taping the conversation because "it is not illegal to tape a conversation."

The court noted that under contract law, for there to be liability for nondisclosure, "silence must relate to a material fact or matter known to the party and as to which it is his legal duty to communicate to the other contracting party. An affirmative act of concealment is necessary." The court concluded that while this was not a contractual dispute, the same legal analysis was appropriate. It concluded:

Clearly, Pastor Terry had prior knowledge that Ray was going to tape the conversation on the advice of Ray's attorney. Julie asserted in her affidavit that had she known that she was being taped, she would have responded differently. Although Ray's affidavit reveals that Julie did not divulge any new or confidential information, that is immaterial as to Julie's claim. Certainly, Ray's knowledge is significantly different than having Julie's purported admission of the affair on tape. At all times, Pastor Terry was an active participant in obtaining Julie's statements relating to the affair.

However, the court declined to impute Pastor Terry's liability for fraudulent concealment to his church or denomination, since Julie presented "no facts to prove that the church or denomination authorized or ratified Pastor Terry's actions in this case."

clergy malpractice

The court noted that courts in other states have "uniformly rejected a cause of action for clergy malpractice," and that "this unanimity is based on the difficulty that would be encountered in evaluating such a claim without entangling the civil courts in extensive investigation and evaluation of religious tenets." As a result, it rejected this basis of liability.

negligence claims

Julie also asserted claims for negligent misrepresentation, negligent infliction of emotional distress, and negligent supervision and retention. The trial court dismissed all these claims, and Julie appealed that ruling. On appeal, she insisted that these claims could be resolved by a civil court without violating the first amendment. The court, in rejecting any liability based on negligence, noted that negligence requires proof of a "duty" of care and a violation of that duty. It concluded, "It is in the establishment of the duty of the pastor, the church, and the [denomination] that would excessively entangle this court into the investigation and evaluation of religious tenets. Therefore, we find that the trial judge was correct in dismissing the remaining claims against all defendants."

Application. This case is relevant for the following reasons:

  1. The court concluded that the pastor-parishioner relationship is not a fiduciary relationship that would give rise to liability based on a breach of that relationship. However, the court cautioned that such a relationship might arise in the context of a counseling relationship between a pastor and a parishioner, or in any other context in which a parishioner places special confidence in the pastor or is dependent upon him or her.
  2. The decision represents yet another rejection of the theory of clergy malpractice.
  3. The court rejected all of Julie's negligence claims (negligent misrepresentation, negligent infliction of emotional distress, and negligent supervision and retention) on the ground that these claims could not be resolved by a civil court without violating the first amendment because they would require a court to determine if a "duty of care" was owed by a pastor or church to a parishioner. Such a decision "would excessively entangle this court into the investigation and evaluation of religious tenets." This is a significant ruling, for it essentially forecloses liability against clergy or churches based on negligence to the extent that resolution of a claim would entail scrutiny of religious tenets.
  4. Most importantly, the court concluded that the pastor could be liable for "fraudulent concealment" as a result of his knowledge that Ray was secretly tape recording a meeting with his wife that the pastor attended. This conclusion is remarkable for two reasons. First, no contract was involved in this case, and so why did the court apply a contract law principle? Second, even assuming that it did apply, the requirements for fraudulent concealment were not met. As the court noted, fraudulent concealment was established by "knowing participation" in the secret tape recording. Yet, as a dissenting justice pointed out in a separate opinion:
  5. The majority correctly [notes] that, in order for there to be liability for nondisclosure, silence must relate to a material fact or matter known to the party and to which it is his legal duty to communicate to the other contracting party. Having correctly recited the principle of law, however, the majority provides no explanation of the pastor's "legal duty" to communicate to Julie that Ray was secretly recording the meeting. While I do not approve or condone the pastor's behavior, I find no authority which suggests he had a legal duty to inform Julie of Ray's secret recording …. [Further] in order to recover damages for fraudulent concealment [the plaintiff] must demonstrate [that the defendant] took some action, affirmative in nature, which was designed or intended to prevent and which did prevent the discovery of the facts giving rise to the fraud claim. Neither the majority nor Julie has suggested any action by the pastor (beyond his silence) to conceal the tape recording. The majority incorrectly substitutes the pastor's participation in the conversation for the required active participation in the concealment of the recording. It is not the conversation that Julie alleges was concealed from her, but rather the recording of it. Absent some active participation by the pastor in secretly recording the conversation, or some other legal duty to disclose to Julie that Ray was secretly recording the conversation, there can be no liability for fraudulent concealment.

    This is clearly the correct analysis, but it was rejected by a majority of the court. The dissenting justice further observed, "I believe the pastor had three appropriate, moral, honorable options. He could have insisted that Ray refrain from recording the meeting; he could have informed Julie of it; or he could have refused to attend. However, my beliefs of what is appropriate, moral or honorable cannot impose legal responsibilities upon the pastor, and I refuse to do so here. The consequences of his actions must be, I think, determined by a higher authority."

    The bottom line is that in Mississippi, or in any other state that follows this ruling, a pastor who is present in a meeting that is being secretly tape recorded by a participant may be liable on the basis of fraudulent concealment if he or she was aware that the meeting was being secretly recorded. Mabus v. St. James Episcopal Church, 884 So.2d 747 (Miss. 2004).

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