• Key point 4-05. Most courts have rejected clergy malpractice as a basis for liability in all cases. A few courts have found clergy guilty of malpractice for engaging in sexual misconduct with an adult or minor, or if they engage in “non-religious” counseling.

• Key point 10-12. Churches face a number of legal risks when they offer counseling services by ministers or laypersons. These include negligent selection, retention, or supervision of a counselor who engages in sexual misconduct or negligent counseling. A church also may be vicariously liable for a counselor’s failure to report child abuse, breach of confidentiality, and breach of a fiduciary relationship.

* The Minnesota Supreme Court ruled that the first amendment guaranty of religious freedom did not prevent it from resolving a man’s claim that his church and a denominational agency were responsible for the negligent counseling of his pastor that led to the breakdown of his marriage. A husband and wife (“Jon” and “Jan”) sought marital counseling from the pastor of their Seventh-Day Adventist church, who met with them as a couple and individually over the course of two years. Jon claimed that the pastor acted inappropriately in several ways, including the following: (1) During one of the first counseling sessions, the pastor told Jon that he felt very attracted to Jan and “needed to pray about it.” (2) The pastor administered a personality test to the couple and advised them that their personality types were “very different” which would make it very difficult for them to have a harmonious marriage. In contrast, the pastor said that his own personality type was “very similar” to that of Jan. (3) On one occasion, the pastor and several church members, including Jan, stayed at a motel during a 4-day out-of-state seminar, during which time the pastor provided counseling to Jan in her motel room. (4) The pastor asked Jan to make a list of the qualities she would like to see in a “fantasy man” and then told her “I am your fantasy man.” (5) The pastor told Jon that if he made himself available, Jan would run off with him. (6) The pastor told Jon that he and Jan were “not right for each other” and that he did not have any hope for a good solution.

The pastor eventually was forced to resign his ministry, largely because of his relationship with Jan. Jon acknowledged that there was no evidence that his wife and the pastor were sexually intimate while the pastor was providing them with pastoral counseling. Jon and Jan were separated and later divorced. Following the divorce, Jan married the pastor. Jon sued the pastor, his church, and a denominational agency, alleging that while acting as a trained counselor the pastor breached confidentiality and violated “counseling relationship boundaries” by repeatedly disclosing personal information. He also asserted that the pastor repeatedly violated church doctrine and policy regarding limits on the counseling a minister may provide, as set out in the “Seventh-Day Adventist Ministers Handbook.” Jon sued the pastor for clergy malpractice, breach of fiduciary duty or confidential relationship, and negligent counseling. He also claimed that the Minnesota Conference of Seventh-Day Adventists (the “regional church”) was liable for the pastor’s actions.

The state supreme court began its opinion by noting that “a court has jurisdiction over claims against a member of the clergy if neutral principles of law establish the standard of care applicable to the clergy member. These principles of law must be developed and applied without particular regard to religious institutions or doctrines.” Jon claimed that a Minnesota statute pertaining to unlicensed mental health practitioners provided a neutral basis for evaluating the pastor’s conduct without regard to religious institutions or doctrines. The statute in question generally prohibits anyone from providing mental health services “for remuneration” unless they are licensed. The statute defines a mental health practitioner to include clergy who provide mental health services, but it exempts “pastoral services provided by members of the clergy to members of a religious congregation in the context of performing and fulfilling the salaried duties and obligations of a member of the clergy by that religious congregation.” The court noted that the pastor in this case met the definition of an unlicensed mental health practitioner if he “provided services equivalent to psychotherapy or the professional assessment, treatment, or counseling of another person for a cognitive, behavioral, emotional, social, or mental condition, symptom, or dysfunction, including intrapersonal or interpersonal dysfunctions.”

The court concluded that the pastor provided secular therapy for “interpersonal dysfunctions” and therefore was functioning as an unlicensed mental health practitioner rather than as a pastoral counselor. In support of this conclusion the court cited the following evidence: (1) The pastor referred to his sessions with Jan and Jon as “marital counseling.” The counseling continued for over two years, ranging in frequency from weekly to monthly; the majority of these meetings occurred outside the church. The pastor brought in non-clergy third parties, at least one of whom understood they were providing marital counseling. (2) The pastor discussed his psychology coursework in the sessions with Jan and Jon. (3) The pastor assessed the couple’s dysfunctions, attempting “to understand what the presenting problems were.” He conducted up to three psychological or personality examinations during his sessions with the couple. In addition, he assessed the couple’s personality types at length and attempted to explain why they were having problems. (4) The pastor attempted to modify the couple’s behavior by suggesting that Jan would run away with him if he asked. (5) The pastor challenged the opinions of two professional counselors who advised the couple not to meet with the pastor, claiming that these counselors did not understand the situation as well as he did and suggesting his approach and advice were superior to that of the professionals.

The court concluded that the pastor’s conduct “falls within the embrace of the statute because it constitutes the assessment, treatment or counseling of another for an interpersonal dysfunction or the equivalent.” As a result, the pastor provided mental health services to the couple rather than pastoral counseling. The court noted that state law lists several categories of prohibited conduct for unlicensed mental health practitioners, including fraudulent conduct, a willful disregard for the health or welfare of a client, or disclosing confidential communications. Jon claimed that these categories of prohibited conduct represented neutral principles that could be used as a basis for finding the pastor liable without offending the first amendment. The court agreed, “Despite the standards regulating unlicensed mental health professionals, a clergy member retains the ability to provide spiritual counseling and guidance, and a church retains the power to require compliance with its doctrinal teachings by the clergy member providing counseling. The statutory standards … require only that the clergy member (1) not engage in willful or careless disregard of the health, welfare, or safety of a client, or create unnecessary danger to life, health or safety; (2) not reveal confidential communications obtained while providing mental health services; and (3) not engage in counseling or treatment when one’s objectivity is impaired. These standards establish a floor of acceptable conduct for mental health professionals that allows for incorporation of spiritual or religious aspects to the treatment or counseling. Therefore, there is no impermissible burden on the exercise of religion.”

The court concluded, “The state regulates only conduct that meets the definition of mental health services, ‘psychotherapy and the professional assessment, treatment, or counseling of another person for a cognitive, behavioral, emotional, social, or mental condition, symptom, or dysfunction, including intrapersonal or interpersonal dysfunctions.’ The statute does not reach any spiritual advice or guidance from a clergy member, but contemplates a formal counseling relationship to address particular mental or interpersonal dysfunctions.”

Application. This case demonstrates that in some states pastors who engage in various forms of “secular” counseling are subject to a greater degree of potential liability for their conduct than those who engage in “pastoral” counseling. Odenthal v. Minnesota Conference of Seventh-Day Adventists, 649 N.W.2d 426 (Minn. 2002).

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