• Key point: State bar associations are not liable for the malpractice of licensed attorneys. The same principle should protect churches and denominational agencies that ordain clergy from liability for the misconduct of those clergy.

• The Utah Supreme Court refused to find the state bar association legally responsible for the negligence of a licensed attorney. The attorney represented a client in a bankruptcy proceeding. As a direct result of the attorney’s bungling, a debt arising from an auto accident was not discharged. As a result, the client was prevented from renewing his chauffeur’s license and working as a truck driver. For more than four years, the attorney attempted to correct this problem, but to no avail. The client complained to the state bar association, but was informed that a 3-year statute of limitations barred any formal complaint against the attorney. The client later learned that the state bar association was aware of numerous complaints against the attorney, and was about to file its own disciplinary action against him on the basis of “a pattern of misconduct including negligence and incompetence.” The attorney was later disbarred on the ground that he “carelessly and negligently represented bankruptcy clients and failed to correct his errors when he might easily have done so.” The client was outraged. He filed a lawsuit against the state bar association insisting that it had been remiss in not protecting him from the attorney’s incompetence. The supreme court summarily rejected this claim on the ground that state bar associations cannot be liable for the misconduct of attorneys. In fact, no state bar association ever has been found legally responsible for the misconduct of licensed attorneys. The fact that the bar association licenses attorneys, requires annual dues, and reserves the right to discipline them for violations of professional ethics is not sufficient to make them responsible for an attorney’s misconduct. If an attorney commits malpractice, few would ever think of suing the bar association as a result of its act of licensing the attorney. The relationship is simply too attenuated.

Here is the key point—many churches and religious denominations ordain or license clergy, and this fact alone should not make the credentialing body liable for the acts of a minister. Like a bar association, the church or denomination simply recognizes, at a particular point in time, that an individual is competent to fulfil the obligations of the profession. A determination of competency typically involves an inquiry into an applicant’s moral fitness, but this same inquiry is made by bar associations in most states. A church or denomination often renews ministerial credentials annually, as does a bar association. Such renewal normally does not involve a review of the individual’s competency. Rather, it is an administrative procedure to ensure the continued affiliation of the individual and to raise funds through fees or dues. A church or denomination often will provide some means of discipline of clergy who engage in unscriptural or inappropriate conduct. Bar associations also exercise the right to discipline or dismiss attorneys who violate the professional “code of ethics.” The fact that no bar association has ever been found liable for the malpractice or misconduct of a licensed attorney is a fact that is directly relevant in any case seeking to impose liability on a church or denomination solely because of its credentialing a minister who engaged in some form of misconduct. The same analogy can be made with respect to doctors, architects, nurses, certified public accountants, morticians, surveyors, and a variety of other professions whose members are licensed by a state agency. Again, these credentialing agencies are not legally responsible for the misconduct of their members, and for the same reason churches and denominations should not be legally responsible for the misconduct of clergy that they ordain, commission, or license. This is an excellent argument that will have considerable force with a civil court. Bailey v. Utah Bar Association, 846 P.2d 1278 (Utah 1993).

See Also: The “Bar Association” Analogy

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