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.

Should we accept contractual prevailing party fee provisions?

The business world is driven by contracts.  Religious organizations are not insulated from this reality.  If a synagogue needs a new roof, if a church has a hole in the parking lot that needs repair, if a loan is necessary to construct a new Buddhist temple, each of these events will require a written contract.

Parties can agree that if they end up in a lawsuit over the contract, the party who loses the case will pay the winning parties’ reasonable attorney’s fees. But should a religious organization agree to a prevailing party fee provision?

What should be considered when faced with this question is which party has more to lose from a prevailing party fee provision. For example, if a well-funded religious organization contracts with a small contractor who has limited resources, the religious organization agreeing to a prevailing party provision may not make sense.  The only party in that example who has the means to pay the other party’s attorney’s fees is the religious organization. Conversely, if a modest religious organization is contracting with a major financial institution, then the religious organization agreeing to the fee provision makes more senses.  In litigation, a prevailing party fee provision can become the rock that brings down Goliath.  Prevailing party fee provisions level the playing field for the smaller party: if the smaller party wins, it can recoup the financial burden of going through the courts.

It is also important to understand that in Florida, a religious organization does not eliminate the risk of paying an opposing party’s fees by entering into a contract that only allows the religious organization to recover fees.  Florida statute permits the award of prevailing party fees to a party who wins a case under a contract that expressly provides only the opposing party may recover fees.

Therefore, careful thought should be given to the economic realities of the contracting parties when considering a prevailing party fee provision.  The attorneys at GrayRobinson can counsel religious organizations on the best strategies for these, and other, contract terms.

Florida’s Unincorporated Not-For-Profit Religious Associations

Many churches, synagogues, and other places of worship in Florida are unincorporated.  What does it mean to be an unincorporated religious association in Florida?

The simple answer is unincorporated not-for-profit religious associations have no legal standing in Florida.  These associations cannot sue or be sued.  This means these associations also cannot enter into enforceable contracts.  The Florida Supreme Court found “such a society or association has no legal existence, and it can neither contract nor sue or be sued in its own name.”

Florida courts have repeatedly held that until the legislature passes laws (as other states have done) recognizing an unincorporated association’s ability to sue and be sued, these associations will continue to lack any legal rights.  Florida’s First District Court of Appeal stated: “[U]nincorporated associations whose functions are fraternal or social…are a legal enigma in Florida. Although we can talk about them, define them, pledge allegiance to them and contribute money to them…, we cannot sue them. We can only attack their members.” As evidenced by the comments of the Appellate Court, existing as an unincorporated association exposes the religious association’s members to being sued.  Some courts have even stated the only way to sue an unincorporated not-for-profit association is to sue all of its members.

Religious groups in Florida should therefore consult legal counsel to determine the best strategy for their existence: incorporate and assume the ability to contract, sue and be sued; or, exist as an unincorporated association and enjoy protection against suit, while exposing the association’s members to possible liabilities.  The attorneys in GrayRobinson’s Religious Organizations practice group can counsel religious organizations through this decision.


To Remove a Neighbor’s Tree Roots or Not… That is the Question!

In the November 15, 2018 blog post, we addressed the importance of religious organizations keeping properties free of known tripping hazards.  Of the many common tripping dangers, tree roots are a consistent problem.  Roots can raise sidewalks, create hazardous cracks in roadways, and can simply grow so big that the roots become their own hazard.  Therefore,  a property owner wisely removes dangerous roots when they arise.  But what happens when the tree that is the source of the roots grows on a neighbor’s property?  Can the removal of roots from the neighboring tree create a responsibility to pay for injury to the neighbor’s tree?

Under Florida law, an owner of a healthy tree is not liable to an adjoining property owner for damage caused by encroaching tree branched or roots.  Similarly, the adjoining property owner is permitted to trim back, at its own expense, any encroaching tree roots or branches which have grown onto the adjoining property.

In the recent appellate opinion of Balzar v Ryan, the court refused to hold an adjoining property owner responsible for damaging a neighbor’s tree when the adjoining property owner removed tree roots encroaching upon the property owner’s land.  This finding is good news for property owners attempting to keep the land free of tripping hazards. Landowners may responsibly remove encroaching roots from neighboring trees without concern that damage to the tree will result in a claim against the adjacent landowner.

The take away: property owners should always err on the side of removing tree roots as part of the continued effort to keep the premises safe.

Guns in Places of Worship? The Debate Continues

In the wake of multiple tragic shootings, the debate continues whether religious organizations should permit members to carry firearms when worshiping.  In late January 2019, the Florida House of Representatives passed a bill that would pave the way for religious organizations to permit concealed weapons in places of worship.  House Bill 403 proposes amending Florida statutes concerning carrying concealed weapons to provide:

“Notwithstanding any other law, for the purposes of safety, security, personal protection, or other lawful purposes, a church, a synagogue, or any other religious institution may authorize a person licensed under this section to carry a firearm on property owned, rented, leased, borrowed, or lawfully used by the church, synagogue, or religious institution.”

The Bill evidences a continued concern of how best to protect members of religious organizations from random acts of violence.  However, the debate is not simply one of whether it is lawful to arm members.  Religious tenants, concerns over creating unnecessary civil liabilities for religious organizations, and the most basic question of whether having armed members attend worship makes the general membership safer, are all factored into the continued discussion whether to arm, or not arm, members.

From the single perspective of what are the civil ramifications of permitting members to carry firearms during worship, the risk to religious organizations of creating civil liabilities is real.  If a religious organization permitted members to carry concealed weapons,  in the event of an active shooter incident, members injured or killed could bring an action against the religious organization challenging how the member who was carrying a firearm reacted to the active shooter incident.

How can this be? The religious organization was trying to protect members by allowing weapons during worship.  The answer lies in the argument that once the religious organization decided to permit weapons during worship, the religious organization assumed a duty of care to the membership to ensure those members carrying a firearm could properly and effectively defend and protect the membership.  In other words, the religious organization created a duty of care that did not previously exist: the duty to ensure members carrying firearms into a place of worship will properly respond in an active shooter scenario.

This is just one example of how, from a civil liability perspective, there can be unintended consequences for a religious organization permitting members to carry firearms. Therefore, religious organizations considering permitting firearms during worship should consult legal counsel to determine how best to create policies and procedures so as to minimize potential civil liabilities.

Riparian Rights: Use and Enjoyment of Water Adjacent to Owned Property

Many religious organizations own land adjacent to bodies of water.  Ownership of the land is established by the title to the land.  But what about the water?  Who has the right to use, and limit access to, the adjacent body of water?

Riparian rights are the rights of a landowner to use and limit access to water bordering the landowner’s land.  Florida statutes provide landowners can boat, fish, bathe and partake in other similar water activities on the bordering water.  However, there are limitations on a landowner’s riparian rights.

First, though the landowner can limit other’s access to the adjacent water, the landowner does not own the riparian rights.  These rights are inseparable from the land, and can only be transferred with a sale of the land itself.

Second, for a landowner to enjoy riparian rights, the land to which the landowner holds title must extend to the ordinary high watermark of the water.

In the recent appellate opinion of Colgan v. Shadow Point, two adjacent property owners fought over ownership of a seawall and the enjoyment of attached riparian rights.  The court found one property owner could construct a fence and deny the other property owner access to the water because, among other things, the high watermark was north of the losing property owner’s land.

The takeaway for religious organizations purchasing land adjacent to bodies of water is close attention  must be made to the land bordering the body of water.  The deed transferring title should be carefully reviewed to ensure the legal description of the property includes the land  adjacent to the body of water.  Additionally, a high watermark survey should be performed to ensure the purchased land extends to the ordinary high watermark.

Benefits of Hiring an Independent Contractor to Make Church Repairs

When deacons and deaconesses take it upon themselves to make church repairs, the Church becomes exposed should a parishioner or an invitee get injured because the repair work was poorly done.  How can you minimize this exposure? Hire an independent contractor.

Florida law provides that a landowner who hires an independent contractor to make property repairs is typically not liable should someone get injured as a result of poor workmanship by the independent contractor.  Additionally, should a person on the Church property be injured while the independent contractor is performing the repairs, the Church will typically not be responsible for the injury (i.e. a ladder falls and injures someone during roof repairs).

Hiring an independent contractor sounds easy:  Find a contractor who does the needed repairs and hire that person to do the work.  Most of the time, it is this simple.  But where property owners get themselves into trouble and lose the protection of the law regarding independent contractors is in the area of “control”.  If the Church is exercising sufficient control and direction over how the contractor performs the repairs, the contractor can lose the status of independent contractor, making the Church liable for the contractor’s negligence.

What is “control” over the actions of a contractor that could undermine the protections afforded with respect to independent contractors?  Instructing the contractor on how to perform the repair work can be a big problem for a landowner.   Setting the scope of work is not a problem and is expected of a landowner hiring an independent contractor.  However, exercising control over how the work is performed by dictating the method and manner of performing the repair is just the type of control that can destroy the protection afforded a landowner hiring an independent contractor.  This control piece underscores why it is unwise to simply have a Church volunteer do the work, and then pay the volunteer some monies for their time. The question of whether the Church was controlling the actions of the volunteer will exist, regardless of the fact that the volunteer was paid.  A best practice is to formally hire by way of written contract the person or entity who is doing the work, establishing in the contract the fact that the laborer is an independent contractor.  GrayRobinson can help you craft these contracts, and can review for accuracy a contractor’s proposed contract.

Volunteer service is a big part of a Church community.  However, when it comes to repairs, the best practice is to hire an independent contractor, and then stay out of the contractor’s way when the repairs are being performed.


Trip and Falls: Who Do We Need to Protect, and How?

It happens all too often. In the middle of bible study the Church Elder is called away to assist a parishioner’s guest who has fallen on the church’s property. Whatever the cause of the fall, if the guest is hurt, chances are there will soon be a demand letter from an attorney blaming the church for the injury and seeking money damages. Is the church responsible to protect the guest? And if so, what are some good practice guidelines that can help avoid future falls?

During the hours when the religious organization is open to the public, the organization must exercise “reasonable care” to protect attendees from dangers that are known, or that should have been known, to exist on the property. The raised root in the parking lot that has been there for many months and that has caused parishioners to trip before should be removed immediately. The same goes for the large pothole in the parking lot, or the visible air vent leak; both conditions are known, or should be known to the organization, and must be remedied quickly.

What is reasonable care? Reasonable care is what a reasonable person would do under the circumstances to fix the danger. A reasonable person removes the root, fills the pothole and fixes the leak as soon as she identifies the danger.

Good practice dictates that a religious organization designate a person, or persons, who are responsible for ensuring the property is safe. Set clear policies for how that person or persons inspect the property on a regular basis, and how identified dangers are fixed. A slow leak from a pipe that is causing a carpet to become damp and slippery may not be obvious to the casual observer. But a regular inspection of the carpet will reveal this dangerous condition and allow the organization to fix the danger before an injury occurs. Remember, even though a dangerous condition might not be open and obvious to the organization, if the danger would have been known to the organization through a careful inspection, the organization will be responsible for injuries resulting from the danger. Routine property inspections will prevent hidden dangers from lingering, and should substantially reduce (if not eliminate) the number of avoidable falls.

Once the organization has a policy in place for regular inspections, make sure the policy is followed. A policy that requires routine inspections is useless if inspections do not timely take place. Attorneys bringing a claim on behalf of an injured guest will capitalize on an organization’s failure to follow its own policies.

Attention to the condition of a religious organization’s property, coupled with a timely response to located dangers, will substantially reduce exposures to the organization.

The Ministerial Exception

Fundamental to the constitutional rights of every citizen of the United States is the First Amendment right to freely exercise religious beliefs without court intervention.  A product of this fundamental right is the right of a religious organization to hire and fire clergy without court intervention.  Therefore, employment decisions concerning selection, hiring and firing of clergy type employees have been insulated from attacks in court.  This is a powerful tool for religious organizations in that it protects the decision-making process from possible judicial second guessing as to who is fit to minister to a church’s parishioners.

What is surprising about the scope of this principle of law (often termed the “ministerial exception”) is that it does not solely apply to ordained ministers, or other ordained type clergy.  Rather, courts have applied this First Amendment protection to employment decision concerning employees whose job duties include advancing a religious organization’s ideals and principles.  By way of example, terminated school principals and choir directors, whose duties included advancing religious organizations’ beliefs, have been precluded from suing their religious employer for alleged wrongful termination.  What is important for religious organizations to understand is who does, and who does not constitute clergy so that a religious organization making employment decisions can understand when their employment decisions will be protected by the First Amendment.