Loose Lips Sink Ships: Protecting the attorney client privilege through litigation committees

The attorney-client privilege allows a client to candidly communicate with legal counsel without concern that the discussion will become public.  However, the privilege is only as secure as it is treated by the client.  Religious organizations involved in litigation are vulnerable to damaging disclosures of privileged communications because of the community relationship between leadership and the organizations’ membership.

Religious organizations’ leadership is primarily composed of members with deep ties to the membership. Typically, this leadership is constituted through a formal board. Because of this intimate relationship with the membership, when legal issues concerning a lawsuit come before the board, especially litigation concerning another member, it becomes extremely difficult for board members to keep from inadvertently sharing privileged information with their religious community. This difficulty is amplified for religious organizations with large boards.

The solution to this problem is the creation of a litigation committee. A litigation committee is composed of a handful of board members who become the point of contact for the lawyers.  All privileged communications pass between legal counsel and the committee members.  The committee is empowered by the full board with the authority to give legal counsel instructions.  If a report is to be made to the full board concerning litigation matters, a sanitized report can be crafted with the assistance of legal counsel. As long as the litigation committee is comprised of trusted members of the board, privileged information should be safe.

Due to the importance of protecting all attorney-client communications, a religious organization should communicate with counsel early in the course of litigation about creation of a litigation committee.

Actionable Slander Within Religious Organizations

The First Amendment right to freely hire and fire religious leaders does not completely insulate religious organizations from being sued for defamation by pastors, rabbis, and other members of leadership.

A Florida case involving a pastor who had preached for 45 years evidences the difference one court drew between the constitutionally protected decision of who is fit to lead a religious organization, and the unprotected neutral issue of whether a religious leader has been defamed.

In the lawsuit, two congregants stated the pastor had stolen money from the church to purchase a vehicle.  The pastor sued the congregants for slander.  When the case came up on appeal, the court found that based on the face of the complaint, the slander action did not concern excessive entanglement in an internal church matter, and did not concern the interpretation of religious doctrine.  The slander claim was found to concern “a neutral principal of tort law,” and therefore the pastor was permitted to continue with his action for slander against the congregants.

What is significant about that court’s logic is that although the church could have terminated the pastor and been protected under the First Amendment from a lawsuit for wrongful termination, the pastor could still proceed with a lawsuit against the persons who made the statement.  Therefore, religious organizations who have concerns with the actions of their religious leaders should consult with legal counsel on how best to address those concerns so as to maximize constitutional protections, while avoiding possible civil liabilities, such as an action for slander.