Q&A: Confidentiality in Small Groups

Can conversations end up in court?

We strive to maintain strict confidentiality within our small groups at church. Recently, though, a woman who was considering joining one of our groups told me that members of her previous church’s small group got called into court to testify against her in a lawsuit based on information she had shared with her small group. Before joining us, she wanted to be assured that sort of thing would not happen again.
So my question is, how private are small groups really? We typically get information secondhand and are not usually witnesses to things that happen in people’s homes or in their personal relationships. So can we—should we—be required to appear in court about things we might know about from small group sessions? Are we able to assure people that our groups are in fact safe for them? Is there any case history that addresses these issues?
The law recognizes that certain conversations should be—and should remain—confidential. For example, a private conversation between an individual and their attorney, minister or health care professional remains confidential under most circumstances, and a court may not require that the attorney, minister and/or health care professional tell about the conversation. In legal lingo, that is called a privileged conversation. A privileged conversation is one where only two people are present—the person seeking advice and the attorney, minister and/or health care provider. The presence of third party, such as a friend, will void the privilege.
Since the small group involves multiple individuals, the conversations that take place in small groups are not privileged conversations for legal purposes. Anyone present can be compelled by a court to tell what happened. There is nothing you can do to prevent this possibility.
This does not mean that one cannot create an agreement among the group members where the members agree to keep the conversation private except when compelled by a court order to share the conversation. In this case, the group members would have the right to sue if a member of the group shared the contents of the conversation with anyone outside the parties to the agreement.
Frank Sommerville is a both a CPA and attorney, and a longtime Editorial Advisor for Church Law & Tax.

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