The case Chad noted is yet another important reminder to pastors and
churches that they need to consider the legal risks in things that they do.
The First Amendment freedom of religion is not absolute (as, of course, no
rights are absolute) and as churches move out into things other than
traditional ministry, they often get into trouble that could be avoided by
seeking some guidance in advance. In this case, the whole problem was the
pastor's side business of being a "professional counselor." He apparently
advertised himself as a secular, professional counselor and maintained a
practice in that area. As a result, the court held that he was bound to
abide by the legal duties that bind all other persons in that profession.

If you want to read the opinion (which is much more informative than the
article), you can find it at:

http://www.2ndcoa.courts.state.tx.us/opinions/HTMLOpinion.asp?OpinionID=15626

The first part of the opinion is taken up with technical legal matters, with
the real discussion of interest here coming in Section IV, subsection B. A
critical point is that she was not alleging "clergy malpractice," but
"professional malpractice." The pastor in question was a licensed
"counselor" and had a side business in which he did secular marriage
counseling in accordance with state law. She and her husband had come to him
in his secular role for marriage counseling.

In other words, the essence of her claim is that because he acted as a
*secular* counselor, for her and for others, he was bound by the legal
duties of a secular counselor. In the same way, for example, an elder who is
also an attorney would face a problem if a church member came to him for
legal advice. Under the law, the attorney could not reveal any confidences
he received "as an attorney," even if his duties as an elder required him to
do so. For this reason, when I was serving as a lay elder and attorney, I
made it a rule that I did not act "as an attorney" for any church members.
Whenever any member of my church consulted me on legal issues, I would tell
them that I considered the conversation to be one between us as elder and
congregant, not as attorney and client. I further made the point (in public
statements and private meetings) that they should never expect me to keep
any secret from the other elders.

Anyway, in this case, the allegation is that the preacher acted as a secular
counselor and then violated the duties of his secular profession. Given that
fact, the decision is not as big a deal as the article makes it appear to
be. Actually, I saw little new in the reasoning and it does not appear to be
"new" in any way with regard to the First Amendment or freedom of religion.

Second, the court was careful to note that the claim was not based on the
letter that was sent to the congregation, but on other allegations of
misconduct by the preacher. That is, the claim against him is not solely as
a result of his First Amendment-protected participation in the church
disciplinary process. Rather, she is claiming that he was a negligent
counselor.

As the court says: "Penley is not arguing that Westbrook committed clergy
malpractice or that he was otherwise negligent while providing pastoral
counseling.  . . . Rather, Penley alleges that Westbrook provided negligent
secular counseling to and for Penley and that his counseling services fell
below the reasonable and prudent standards of care applicable to any
licensed professional counselor under the same or similar circumstances. "

The warning for ministers and churches is that they must not believe that
their ministerial role insulates them from liability for actions taken in
whatever secular role they may fill. A pastor who provides secular services
remains liable for actions in regard to such services, in the same way that
all other church members (and all citizens) are liable.

By the way, the church and the other elders of the church were dismissed
from the case. The only claim remaining (it appears) is the claim against
the individual preacher alleging violation of his professional duties as a
secular counselor.

The case is a good reminder of well-established law and yet another warning
that churches need to be careful and, by the way, talk to a lawyer every now
and then about what is going on.

James W. Allen
jallen@...