Counsel, Care, and Confidentiality: What Religious Organizations Can Expect from Attorneys

There are many misconceptions about the kind of counsel and advocacy that attorneys are expected to provide to ministry clients with respect to handling abuse allegations. Some conceive of the attorney’s role as purely focused on avoiding liability and concealing evidence of wrongdoing by their clients. These notions of the attorney-client relationship are misinformed. Rather, ministries should expect their attorneys to act as advisors who will counsel them through responding to abuse in a way that ensures justice and healing for victims, accountability for offenders, and a clear conscience for the organization.

Compassionate Counsel

It is important to understand that all attorneys are subject to ethical rules that inform their duties to clients, to courts, and to other parties. Much like the professional rules that govern doctors, therapists, and other licensed professionals, the ethical rules that bind attorneys are intended to ensure that attorneys provide competent and effective representation to their clients in a manner that is conducive to a fair and equitable legal system as a whole. When attorneys break these ethical rules, they are subject to suspension or revocation of their law license as well as personal liability for legal malpractice.

One of those ethical rules provides as follows:

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.¹

Under this rule, attorneys are duty-bound to advise clients from a wholistic perspective that takes into account not only legal liability and financial risk, but also morality and compassion. Applying this rule in the context of responding to abuse, attorneys for ministries should not be concerned solely with preventing liability against a ministry client or conserving their financial resources. Rather, attorneys should advise their ministry clients in a way that emphasizes a course of action that is moral, honest, compassionate, and in furtherance of the ministry’s faith-based mission and values. A morally upright response to abuse may not always be the one that is the path to avoiding liability or saving money. However, doing what is in the best interest of a ministry always means doing what is consistent with that organization’s vision and values, especially when it comes to responding compassionately to victims of abuse.

Unfortunately, not all attorneys take seriously their ethical duty of counseling clients to do the right thing. And not all ministries take seriously their own responsibility to ensure protection, justice, care, and accountability in the wake of abuse. But both ministries and the attorneys who represent them should each hold one another to high ethical standards. Attorneys should expect their ministry clients to do right by victims of abuse, and ministries should expect that their attorneys will provide advice and counsel not only for avoiding liability, but for doing what is right.

Confidentiality and Care: The Attorney-Client Privilege

Another obligation lawyers have to clients under the ethical rules is the duty of confidentiality. A lawyer may not disclose any information they obtain from a client without the client’s consent. Only limited exceptional circumstances permit an attorney’s non-consensual disclosure of information, such as preventing imminent bodily injury or death.

The attorney duty of confidentiality is meant to protect the attorney-client privilege. The attorney-client privilege protects communications between a person and their attorney from being disclosed. The purpose of this privilege is to encourage clients to be candid and transparent with their attorneys so that the attorneys can provide effective representation. Just as physicians need their patients to be forthcoming and transparent about their condition so that they can give effective treatment and prescription, so also attorneys need their clients to be transparent about their legal issues in order to give sound counsel and advocacy. Both physicians and attorneys have duties of confidentiality to those they serve, and both patients and clients have privilege rights to prevent disclosure of the information they give to their practitioners.

The purpose of the attorney-client privilege is not to conceal information, hide misconduct, or suppress the truth. Indeed, the privilege is automatically waived when a client seeks legal advice in furtherance of a crime or fraud. And if the client wants to rely on the attorney’s advice as his reason for doing something, he has to waive the privilege. Attorney-client privilege is not some sinister device for evading justice or trampling on the rights of others. Rather, its purpose is to provide space for clients and attorneys to share information and work toward doing the right thing. Attorneys and their ministry clients need to have protected communications in order to work through difficult problems, including issues related to abuse. An abolition or abridgment of the privilege would have the effect of diminishing accountability and transparency, not encouraging it. What would happen is not that outsiders could scrutinize attorney-client communications to make sure they reach whatever standard the outsiders are using for their judgment. The communications would simply not be made, and the clients would fail to get good advice.

In light of the attorney-client privilege, churches and ministries can expect that the communications they have with their attorneys will be confidential and protected. But others should not assume that this protection is for the purpose of covering up abuse, whitewashing offenders, or silencing victims. Ministries and their attorneys should use the safe space of communication created by the privilege to engage in candid and transparent discussion of how to properly respond to allegations of abuse.

Parting Thoughts: Tips on Selecting the Right Attorney

After considering what legal services attorneys can provide for ministries in the context of abuse-related issues, and what ministries should expect from their attorneys, organizations should think about how to choose the right attorney to provide those services. Here are some points to think about.

First, ministries should choose a firm that is experienced with abuse-related issues. Many attorneys are very successful in various areas of practice, but lack the specific skills and insight to effectively advise on complicated and sensitive matters involving abuse. Selecting an attorney who is not experienced with or knowledgeable about abuse matters is not so much like bringing a knife to a gun fight as it is like bringing a knife to perform brain surgery. Be sure your organization selects an attorney with relevant experience.

Second, ministries should choose a law firm that is aware of the financial limitations that churches and ministries face. Many attorneys have billable rates upwards of $600 an hour and exercise little discretion in the amount of time that they bill their client. Non-profit organizations should select counsel that will provide excellent service without breaking the bank. (However, it is also true that non-profit organizations should not expect people with expertise in dealing with dark and depressing matters to do so pro bono.)

Finally, ministries should choose a firm that understands and appreciates their organization’s unique, faith-based values and principles. Many attorneys who do not work regularly with religious organizations lack an understanding of the doctrinal, spiritual, moral, pastoral, operational, and polity concerns that are unique to churches and ministries. Your organization should seek to work with legal counsel that not only understands your mission and values, but is sympathetic with them. This insight is crucial for providing counsel that will further your organization’s faith-based purposes for the benefit of everyone it serves.

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¹American Bar Association, Model Rules of Professional Responsibility, Model Rule 2.1.

Featured Image by Rebecca Sidebotham.