Informative Ruling on Priest-Penitent Privilege

The Massachusetts Appeals Court refused to apply the state’s priest-penitent privilege where the criminal defendant’s conversations with a Baptist minister did not concern spiritual advice.  Consequently, the court permitted the minister’s testimony about the defendant’s admission of child sexual abuse.  Commonwealth v. Vital, 2013 WL 2350393 (Mass. App. Ct. May 31, 2013).

Massachusetts, like many states,Fotosearch_1775298 contains a statutory priest-penitent privilege.  Mass. Gen. Laws  c. 233 § 20A.  Also called the clergy-communicant privilege, the “minister’s privilege,” or the cleric-confessor privilege, this evidentiary privilege generally protects from compelled disclosure a person’s communications—not just confessions—to her priest, pastor, rabbi, or other minister.  Most statutes, however, protect only communications made for the purpose of seeking spiritual or religious advice or comfort.

In Vital, the defendant met with his Baptist minister about his sexual assault of an underage girl.  According to the minister, the defendant’s stated purpose for the discussions was to persuade the minister to talk with the girl’s family in the hopes of avoiding criminal prosecution.  Although the defendant confirmed the privileged and confidential nature of the discussions with the minister before confiding admissions, the appellate court found that the privilege simply did not apply to the conversations.

The defendant in this case . . . did not communicate with the pastor to seek religious counseling, but rather sought the pastor’s assistance in an attempt to avoid the proverbial ‘train going right at the defendant’s forehead, i.e., criminal charges’.

The court strictly construed the priest-penitent privilege statute, found that it did not cover these communications, and permitted the minister to convey the defendant’s confession of guilt to the jury.

PoP Analysis.  Several states maintain priest-penitent privilege statutes similar to the Massachusetts’ statute.  Applicable in criminal and civil cases, the privilege encourages individuals to seek spiritual or religious therapy, if desired, by removing the fear that a court may later force the minister to disclose statements made during a spiritual discussion.  But as in Vital, courts strictly construe the statute.  Vital reminds practitioners to, where possible, lay a foundation that the communicant’s discussions with a clergy member were made for the purpose of seeking religious or spiritual advice within the confines that religious discipline. Only after laying this foundation will courts apply the privilege and prevent disclosure.

Selection and Preparation of Corporate Representatives for 30(b)(6) Depositions

In-house and outside counsel should never underestimate the importance of selecting and preparing the appropriate representative(s) for a Federal Rule 30(b)(6) (or state-law equivalent) deposition.  The requirements placedselection on the chosen representative–as well as in-house and outside counsel–invoke rigorous preparation, which includes a thorough understanding the corporate attorney-client privilege.

In my article, Selection and Preparation of Corporate Representatives for 30(b)(6) Depositions, published by InsideCounsel, I breakdown Rule 30(b)(6)’s requirements.  I also outline the duties and responsibilities that the rule imposes on corporate parties (and, thus, their lawyers), and expose some of the myths developed over time.  The article, accessible here, also discusses qualities and characteristics that counsel should consider when selecting corporate representatives.

The article also emphasizes the importance of thorough preparation, and how that preparation must include educating the representative as to the corporate attorney-client privilege.  My thanks to InsideCounsel for publishing the article and permitting its reprint in this post.

Excellent DRI Article on Duty of Confidentialty and FRE 502 Waiver Preventions

Federal Rule of Evidence 502 authorizes parties to enter nonwaiver orders and nonwaiver agreements in an attempt to remedy inadvertent disclosures and avoid waiver of the attorney-client privilege or the work-product doctrine.Puiszis_Page_1  (As an aside, Rule 502 waiver preventions apparently do not apply to other evidentiary privileges).  Questions arise, however, whether Rule 502 protections comport with Model Rule 1.6’s duty of confidentiality, and whether utilizing Rule 502 protections may nevertheless lead to ethical violations.

Steven M. Puiszis’s excellent article, Reconciling Federal Rule of Evidence 502 with Model Rule 1.6, published in DRI’s reputable For the Defense journal, identifies the problems and offers sound solutions.  The article, accessible here, explains how 502(d) nonwaiver orders and 502(e) nonwaiver agreements may help avoid pre-production privilege-review costs but at the same time breach the lawyer’s confidentiality duty.   Mr. Puiszis’ correctly points out that Rule 502 has “not lived up to its promise” of reducing costs, and posits that the reason is concern that using 502 orders or agreements may result in an ethical violation:

While the entry of a Federal Rule of Evidence 502(d) nonwaiver order or a Federal Rule 502(e) nonwaiver agreement may allow an attorney to recover privileged or protected information produced in discovery, an unauthorized disclosure has nonetheless occurred. . . . Accordingly, a disciplinary tribunal could conclude that the mere entry of a nonwaiver order does not qualify as a reasonable attempt to prevent disclosure as required by Model Rule 1.6(c).

The article contains a thorough discussion of the “reasonable steps” required to protect against inadvertent disclosures and inadvertent release of confidential information and concludes with 7 meaningful practice tips.  The article is a must-read for in-house and outside counsel.  My thanks to Mr. Puiszis and DRI for permission to reprint the article in this post.