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EthicsWalk addresses spiritual care as an ethical enterprise. It explores why relationships between spiritual care providers and those they serve need protection, and examines what that protection entails. PlainViews invites our readers to share their responses to each EthicsWalk column, which will be published in the following issue.

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Confidential and Privileged Communications: Different and Distinct, Part I

A Bleeding Man staggers into your hospital office. You are alone. Before collapsing into unconsciousness, he drops something and gasps, “Chaplain, hide this and don’t tell. If Ted’s found I don’t want the knife that did it on me.” Ted is found – dead. Bleeding Man’s lawyer argues his client’s confession to you is protected by clergy-penitent privilege and your testimony is barred. Is it?

Assume for now this might be considered confidential. Is it privileged?

Confidential and privileged communications are not the same. They may overlap but are different conceptually and functionally. Confidentiality is a duty of the professional to the communicator. Privilege is a right concerning communication protected from specific disclosure. It is granted by the State through statue or evidentiary rules which define privileged communication for the purpose of deciding what testimony is admissible in court. [1] Rules differ somewhat from state to state.

“Confidentiality” applies to situations where one's professional role justifies an expectation of non disclosure by the communicant. Duties of confidentiality address the ethic of holding the confidences of one’s clients or congregants secret. These duties are determined, among other things, by professional ethics codes, licensing requirements, denominational polity, employer’s policies, tradition, and public expectations.

Rights of testimonial privilege are narrower. And, testimonial privilege does not create a duty of confidentiality outside of court. It is difficult to imagine why a professional would not extend the duty of confidentiality to information covered by privilege. However, that happened in the divorce case Lightman v. Flaum (2001, N.Y.). [2] There the husband submitted affidavits from two rabbis of the family’s congregation giving information the wife had shared when seeking religious guidance. Consequently, the wife lost custody of the children and filed a civil suit against the rabbis for disclosing information covered under New York’s statue governing the Religious Privilege (clergy-penitent).

The court held that Religious Privilege is entirely a principle of evidentiary law. By itself it does not impose a fiduciary duty of confidentiality upon clergy that would make them liable at civil law for disclosure of confidential communication. The case affirmed that privilege is only about the admissibility of evidence in court. At least in New York, privilege does not give rise to a cause of action for breach of fiduciary duty involving the disclosure of oral communication between a congregant and a cleric.

To determine whether Bleeding Man’s interaction with you, the chaplain, constituted clergy-penitent/religious privilege, ask the following questions:

1. What was your role in relation to Bleeding Man when you received his communication?
2. Was there an expectation of confidentiality by Bleeding Man at the time?
3. What was the nature of the communication to you from Bleeding Man?
4. Was Bleeding Man seeking spiritual guidance from you as chaplain?
5. Within your denominational polity, was this a confidential or penitential communication?

Next month’s column will discuss the history of privilege and offer another hypothetical to illustrate confidentiality. Your questions are welcome.

[1] Privilege applies to testimony permitted/required before a court of law. Privilege may not cover clergy before a grand jury or administrative agencies and never applies in a non-governmental forum.
[2] Lightman v. Flaum, 761 N.E.2d 1027 (2001)

Anne Underwood has an undergraduate degree in religious studies, a master’s degree in rural sociology and a mid-life law degree obtained after working over a decade as a college administrator. She has mediated for the Maine family courts since 1983. Currently she serves as an advisor to the ethics commissions of ACPE, APC, the CCAR (Central Conference of American Rabbis), and NAJC, and consults with a variety of Protestant faith communities on issues of power, fair process, and congregational conflict management. Her articles on mediation and restorative justice have appeared in the ACPE News, The APC News and on the ACPE web site. Articles on clergy accountability and judicatory processes are published by the Alban Institute and The Journal on Religion and Abuse. A chapter, “Clergy Sexual Misconduct: A Justice Issue,” appears in Body and Soul: Rethinking Sexuality as Justice-Love, Marvin Ellison and Sylvia Thorson-Smith, editors, The Pilgrim Press, 2003.