“The Postponement” – Clergy/Penitent Privilege

After Rabbi Glickman uses his big mouth to blab all over town that Elaine is filled with jealously and resentment of George for entering the holiest of unions, Elaine is mortified that their personal conversation was made public. Was the conversation between Elaine and the Rabbi protected by the clergy-penitent privilege? Can the Rabbi reveal the contents of their conversation to the public?

The clergy-penitent privilege, also known as the confessional privilege, is a rule of evidence that protects certain conversations between a clergy member and a parishioner from being used as evidence in a court proceeding. There is no actual Federal Rule of Evidence that protects these communications, rather the confidentiality privilege of these communications at the Federal level is similar to seeing the Forest for the Trees – it is rooted in First Amendment jurisprudence and has grown into judicially created precedent. Nearly every state, though, has codified this privilege statutorily, and New York state does have a specific rule of evidence that protects these communications. Since the communication between Elaine and the Rabbi took place in New York City, New York law will apply to their conversation. Therefore, if Elaine’s conversation with the Rabbi fits the requirements of the New York State statute, there is the potential that their conversation is legally protected as privileged communications. So, was this communication protected by law?

But he's a rabbi. How can a rabbi have such a big mouth?

Before we delve into the analysis, it’s important to note that the parishioner need not be a member of the clergy’s congregation or even be part of the same religion. Thus even though Elaine may not be so interested in kasha varnishkas or going to a singles function at the Temple, her communication with the Rabbi could still be protected.

He owns a flower store. Very successful.

To determine whether a conversation is protected by the privilege, New York courts have outlined a 2 part test. First, it must be determined whether the communication was made in confidence or in private, because that will demonstrate whether the parties intended it to be confidential. The second part of the test is whether the communication with the clergy member was made for the “purpose of obtaining spiritual guidance,” rather than just as a casual conversation between friends. Just because a person exposes the bitter, hostile feelings about a loser friend to a clergy member doesn’t mean that the communication is protected. It has to be a conversation that is conducted with the purpose of seeking the clergy member’s spiritual guidance. This second part of the test is really two parts within it itself. The parishioner must be seeking spiritual guidance and also the clergy member must be acting as a spiritual advisor, and not just a friend or acquaintance.

Elaine, oftentimes in life there are problems...

...and just as often there are solutions.

The first part of the test seems to obviously tilt in Elaine’s favor. It took place it a private room with nobody around, and therefore it would clearly satisfy the requirement that it be in confidence. On to the second prong.

The New York laws of evidence require that the communication must have taken place when the clergy member was acting in his or her “professional character as spiritual advisor.” If Elaine was merely kibitzing with the Rabbi as friends, then their conversation would not be protected even if Elaine overindulged in telling the Rabbi about her jealousy of loser George. However, it seems to be that their conversation was in the context of the Rabbi serving as a spiritual advisor. The Rabbi invited her to speak with him in his office, and he offered her the kind of incomprehensible advice that only a Rabbi could give. Additionally, it’s pretty clear that Elaine was seeking spiritual guidance, as she said “I’m not a very religious person but I do feel as if I’m in need of some guidance here.” Therefore, it seems to be that under New York law Elaine’s conversation with the Rabbi would be privileged communication protected by law. Does this mean Elaine could sue Rabbi Glickman for revealing their conversation?

The Rabbi could claim that Elaine “waived” her right to privilege, but that would be very difficult to prove in this case. Elaine never indicated at all that she would be ok with the Rabbi sharing the contents of their conversation.

However, before Elaine hires Jackie Chiles to sue Rabbi Glickman, it is important to note that the confidentiality privilege only exists in a court of law. To just spread gossip and rumor is not illegal even if it was regarding an otherwise privileged conversation between a clergy member and a parishioner. It would be illegal for Rabbi Glickman to tell a court what Elaine told him, or for a court to obligate him to reveal the contents of their conversation, but the Rabbi is not legally bound to keep his conversations with Elaine confidential when he engages in just casual conversations with Jerry, Mrs. Winston, or even mysterious Don Ramsey.

Interestingly though, had Elaine had this sort of conversation with a lawyer, then the lawyer would be barred from revealing the contents of the conversation to anyone even outside a court of law. The ethical code governing lawyers require that lawyers maintain all information told to them by a client to be kept in confidence. But hey, if you’re never going to see them again anyway, what’s the difference.

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