Confidential and Privileged
Communications of Clergy
by Rev. Donald W. Struble, MBA, DBA
With the prolific cases of court law against ministers, Christians who counsel, and anyone who supplies advice, it behooves any Christian minister to make sure they are protecting themselves, their families and their assets from the vultures of the world. We have become a nation governed by "case law" and court cases are fueling the behavior legal system. There are three major considerations when considering this subject. They are all related, although each is a separate subject and must be dealt with independently.
It all begins by knowing who you are. If you are not absolutely convinced of who you are, your public image, and how that person should represent himself or herself, then you will fail miserably at convincing a court of any right or privilege you might have as a commissioned, licensed, or ordained minister of the gospel.
The definition of a ministry which stands most court tests is the one found in the IRS Publication 517, which defines a qualified minister in the eyes of the IRS. This is for the special income tax benefits of a tax exempt housing allowance, the treatment of social security contributions, and for the tax significant question: "who is an employee and who is considered self employed." That definition found on page 2 paragraph entitled "Ministers Defined," as well as the paragraph entitled "Qualified Service - Ministers" found on page 5, ought to be your guide in all of these legal matters, if you are the slightest bit concerned.
It is important for us to consider that it makes no difference what you learned in seminary back in ‘73, or what your spiritual apostle has spoken over you, regarding your understanding of who a minister is in the eyes of the law. You may have all kinds of ideas about deacons and elders, and the laying on of hands as an ecclesiastical activity, but the law of the nation and of the several states may have other expectations.
Almost without exception, the performance of the duties of a perceived minister hold more weight in a court of law (or even with your state Department of Professional Regulation) than one's membership in some religious order, or a certificate hanging on the office wall. The deciders of these legal matters want to see the evidence. In this case the evidence they are looking for is the verifiable activity associated with a person who claims pastoral privileges.
These have been defined by the IRS for us. They are not complicated or even demand a percentage of time or a formula. Bureaucrats want to see a following of loyal people who see you as their religious leader. These evaluators want to see that you regularly meet with these people, you pray publicly, you perform marriages and funerals, perform the sacraments of your faith, such as Holy Communion, Water Baptism, infant dedication, prayer for the sick, Bible studies, classes on religious subjects, and other sacerdotal services. Administrative services don't count.
Let me explain this last statement with a simple illustration: A pastor of Great Church has been a highly respected pastor for over 25 years. He has pastored 4 churches in those years, and received tax privileges, exempted from Social Security, and didn't pay income tax on the cost of his housing. Then he was honored by his denomination by electing him as president of their seminary. The day he walked into his new full time office as college president, his clergy benefits stopped. He was performing the activities of an executive, not those of a clergy person, even though his ordination certificate hung on the new wall and he prayed at the board meetings.
The strong rule in this case would be: "Be ye doers of the stuff, not just joiners of the fraternity."
I. Who are protected?
The "clergy-penitent privilege" applies to those commissioned, licensed, or ordained ministers so endorsed by an authority chartered for such purpose, and who fulfill actively the majority of the services listed in IRS Publication 517 section on "Qualified Services."
If they are regularly providing pastoral counseling (it may not be Christian) it must be done at the request of the counselee, and with the knowledge and expectation that the information shared is of a pastoral nature and the advice given is spiritual and not psychological. The issue of whether the counselor is receiving compensation or not, isn't relevant in most cases. If you are a professional, pastoral advisor, preacher, teacher, or whatever, it is presumed that you are being paid to do whatever service you provide.
Some states have their own statutes governing who is protected and how one qualifies for this definition. Some states actually regulate pastoral counseling activity, for a board of professional regulation. In most of these cases it is not difficult to qualify for the pastor privileges, if you are actually doing the work of a minister. These appointed protectors are just trying to protect the innocent public from amateurs or frauds.
II. What is protected?
Information is what is being insulated: information you have that someone else wants. This is usually information you learn from the depth of your pastoral coaching, discipleship, or whatever you call it. Many states have mandatory reporting statutes which apply even to exempted clergy, for certain kinds of information. This is most frequently in the area of child abuse. In most states, if you learn of current, recent, or potential child abuse or molestation, all professionals are required to report this to a particular agency in your state.
If you believe there will be any such revelation within your conversations with counselees, I would recommend that you have a memorized statement (like the reading of the Miranda rights) or a written policy statement and hand that paper or make the recitation to the person during your initial intake interview. That statement is as simple as saying: "even though all of our conversations are private and nothing can ever be discussed outside of this room, even in a court of law, I am however required by law to report any discovery of child abuse that may become evident within our visits together."
Other than that crack in your armor, all other information is privileged and may not be subpoenaed by a court of law, provided you are who you say you are.
On the other hand, a parishioner may sue you for some act or disagreement, and for this you ought to carry professional liability insurance as a pastor performing a defined amount of counseling.
III. How do you maintain your protection?
(a.) Do not operate in isolation or without the endorsement of peers. The most credible defense, as well as positive public image, is your stature among others of professional level, who endorse you, recommend you, even defend you. That would begin with the submitting to some overseeing body or board, who has the understanding of your ministry, has your best interest at heart, and is willing and able to provide you with credible reference.
Every person who portrays themselves as a pastoral anything must be appropriately credentialed as a minister or clergy person. The standard levels of ministerial credentialing, as defined in IRS publications are: commissioned, licensed, and ordained. The very credentialing process should place certain defined demands upon the candidate which separates them from the average member of any church. The obtaining of one of those levels of ministerial credentials usually satisfies regulators as to who the clergy person is.
(b.) The maintenance of these ministerial credentials is even more important as time goes by. There are those in the Christian community who believe "once ordained, always ordained," but that doesn't hold up in a court of challengers. When your credentialing authority requires periodic reporting of your performance, continuing education, ministerial activities, substantiating sacerdotal services, and even challenges, you are providing your covering with supportive information with which to recommend you and defend you. If you are never required to give an accounting of your performance, the issuing authority isn't interested and doesn't really care. They are actually not in a position to do anything for you, so they don't want such information.
(c.) There should also be an expiration of your clergy papers or authorizing credentials. How can a board or agency vouch for the role model behavior of a person ten or twenty years from the date on their certificate? There must be a time period which automatically terminates or expires or requires some further examination or reporting to update the records of the authority organization, as well as reveal changes in a person's career or profession. The annual renewal of ministerial credentials, requiring fresh information about that person's ministry, is the usual and acceptable method of policing the active clergy individuals.
(d.) Finally, the ongoing maintenance of your "clergy-penitent privilege" is done by activity. The professional activity must routinely include the sacerdotal services of your faith system. If your faith system includes Passover Seder, then they will ask: "do you do that?" If your faith system includes Jesus Christ as the basis for your counseling; do you talk about Jesus Christ in your counseling sessions?
Would other people in your city, particularly other ministers, recognize you as a minister of the gospel? Do you do activities such as: volunteer for indigent funerals, perform marriage ceremonies, pray for the sick in the hospital, take communion to elderly people in nursing homes, provide volunteer chaplaincy to the sheriff or fire department, participate in local ministerial cooperative activities, and most importantly: hold a weekly assembly of believers for teaching and worship?
That whole matter of living demonstration has long been a court test, as well as an IRS and tax court test, of whether a person claiming to be a clergy person is acting as a clergy person. Is there a daily or weekly demonstration of the spiritual services a "set apart" person is expected to be performing in our society? Then the question: Can anyone else verify or vouch for that claim?
There are many court cases in our society today which involve this issue of pastoral privilege and insulation from court subpoena of progress notes, as well as licensing demands of state regulators. I have notes in front of me about recent cases in New Jersey, Mississippi, Iowa, Louisiana, Alabama, Oregon, New York, and North Carolina.
In a case in New York last year, a woman had received counseling from her Rabbi, which included discussing some very negative information about her family life. Not long after these sessions, the woman and her husband were battling over child custody in their divorce court case. The husband in the case obtained a signed statement from the Rabbi containing damaging information against the wife, based upon information he had become aware of in his counseling sessions with her.
How would you react if you were facing a court which had negative information gathered from you by your pastor in a counseling context? Well, the woman sued the Rabbi, charging that there is an implied fiduciary responsibility on the part of clergy not to disclose information that is shared with them. It is a presumed trust, which goes with the title and position of religious counselor or advisor. This conversation between the woman and her Rabbi was a conversation protected by the "clergy-penitent privilege" and as such the New York court ruled that the Rabbi was in fact legally liable for the information passed on for others to hear.
I'm emphasizing this particular case because this insulation of the clergy works both ways. A clergy person is not permitted to reveal pastoral conversations held in private with parishioners. Likewise, governmental and legal agents cannot serve you with a subpoena to present your case folder in a court upon their request. They cannot ask for it, and you cannot tell it.
I do wish to remind you of an exception I mentioned earlier, that is, the state required reporting of child abuse or the knowledge of a crime. These statutes vary from state to state, but are in two categories: Mandatory Reporting and Permissive Reporting. The first is information that may be revealed to you in the context of a counseling session that a child has been abused or molested. Most states have statutes piercing your "privilege armor" and making it mandatory to report that information to some particular state agency. Counselors are "Mandatory Reporters."
The second category is permissive reporting by a "privileged provider" of information which could be detrimental to someone's life and well-being or to the public safety. Let's say: a person is within your counseling arena and tells you they hate their spouse and show you the pistol with which they are going to shoot the person soon. Some states demand that you report that information as a preventative measure. Other states only make this a public safety request.
If you read in your morning newspaper that your counselee murdered their spouse and three children last night, it will have been too late for you to have considered the significance of your "permissive reporting" of a potentially dangerous person. A word of caution is in order here. As soon as you exercise "permissive reporting" you have opened the door to being liable for whatever you reported. If it was bad news and it was untrue, you could be in trouble.
Let me return to the New York court case once again. The court said: "if the conversations were of a confidential nature, in other words, not in a group setting, then the professional listener is under non-disclosure obligation." Here is an example of a court clearly recognizing the implied secrecy of conversations with a clergy person and ruled against the Rabbi.
The focus of this message is the "clergy-penitent privilege," which is simply a rule which says: Communications which are shared by a counselee with a minister are privileged if (1) the counselee seeks out the minister, (2) the minister is acting in his or her professional capacity as a spiritual advisor, (3) there are no third parties present, and (4) implied secrecy prevailed in the absence of any signed release of the information by the counselee. In this context the minister cannot be required to divulge the contents of any communication in court or in a deposition. That is what the privilege means. The evidence is privileged.
In summary: You must be credentialed as a minister or spiritual counselor. The counselee must have sought you out for your ministerial capacity for spiritual advice and it was done in a confidential setting. Equipping yourself and maintaining your clergy credentials and image are all vital to the entire insulating process. If you wish to be covered as a spiritual counselor, not competing with the psychology provider down the street, you must do your homework. Otherwise, everyone will view you as a social worker or secular counselor, regulated by state policy.
The decision is yours to make. Once you decide to be "set apart" for the work of the ministry, you are then responsible for behaving in the expected manner with enough evidence to defend your confidentiality.