and Rabbinic Counseling
- An Overview of Halakhic
and Legal Issues
Rabbi Michael Broyde
Rabbi Yona Reiss
Nathan Diament, Esq.
and Rabbinic Counseling
- An Overview of Halakhic and Legal Issues
Rabbi Michael Broyde
Rabbi Yona Reiss
Nathan Diament, Esq.
- Under the Federal Rules of Evidence, a federal court will
apply the privilege rule of the state in which the court is sitting.
- It should be noted that the penitent need not be a member of
the clergymans congregation, or even of his religion for the privilege to apply;
thus, for example, a Baptist layman could seek spiritual counseling from an Orthodox Rabbi
and the privilege would apply.
- In some states, the statutory language granting the privilege
might be read to suggest that the only rabbis that may be bound by the privilege are
congregational rabbis who are, in the words of Connecticuts statute for example,
"settled in the work of the ministry." Thus, in these select states, there might
be a question as to whether, for example, a Rabbi who is a day-school principal and
counsels a student is bound by the clergy-penitent privilege.
- The law states: "Unless the person confessing or
confiding waives the privilege, a clergyman
shall not be allowed to disclose a
confession or confidence made to him
" C.P.L.R. 4505. Other states that
similarly bestow the privilege upon the "penitent" include Connecticut,
Massachusetts, Michigan and Ohio. There are also states such as Florida and Wisconsin
that, while making the "penitent" the holder of the privilege also permit the
clergyman to invoke the privilege (and not disclose the communication) on that
- Delaware and Maryland are among the states that grant the
privilege to the clergy.
- Other states in this category include Alabama, California,
Colorado and Pennsylvania.
- See People v. Drelich, 123 A.D.2d 441 (1986).
- If the Rabbi is counseling a married couple together with
regard to marital issues, the privilege probably still applies because there is a separate
"spousal" privilege that renders communications between husband and wife to be
confidential. An interesting question, yet to be addressed, would be when the Rabbi and
his wife counsel a person or couple together, whether the existence of a spousal privilege
between the Rabbi and his wife preserves the privilege or her presence does not allow it
to be created.
- A recent decision by a New York court rejected the free
exercise claim asserted by clergy in a lawsuit, while a Michigan court recently ruled that
free exercise rights required the dismissal of a lawsuit brought against a clergyman.
- See Employment Division v. Smith, 494 U.S. 872 (1990)
(laws which are religion-neutral that have incidental effect of burdening religious
practice held by the Supreme Court not to be unconstitutional). However, Rabbi J. David
Bleich has astutely noted that clergy-penitent confidentiality statutes may not be
"religion-neutral" even under the current constitutional law regime (since such
statutes are more directly targeted at religion and therefore are more likely to be
protected by the "free exercise" clause).
- Rabbis should be mindful that the attorney of a congregant
or a congregant who happens to be an attorney but have not retained by the Rabbi as his
personal attorney, are not bound to represent the Rabbi and his interests.
- The first is loshon hara; the second, Lashon haralashon
hara; the second, Rekhilutrekhilut; and the third, Motzi shem ramotzi shem
ra; see RambamMaimonides, Deot 7:1-7, Deot 7:1-6, where these distinctions are
clearly articulated. For the classical work on this, see generally, R. Israel Meir Kagan,
Hafetz HayyimR. Israel Meir Kagan, Hafetz Hayyim.
- See Yuma 4B (source of obligation not to betray
information revealed in confidence) and Magen Avraham, Orach Chaim, 156:2.
- See Hafetz Hayyim, Rekhilut 9:1-15 and Loshon
Hara 10:1-17. There is no absolute requirement of personal knowledge, and reliable
hearsay may be repeated to the potential victim. However, if the knowledge is based on
reliable hearsay which has not been confirmed through personal investigation, that fact
should be noted by the repeater of the information who must also ensure that the potential
victim understands that the information is unverified. See Hafetz Hayyim, Rekhilut,
9(2):10; Bear Mayim Chaim, Rekhilut, 9(2):9, and Zelig Pliskin, Guard
Your Tongue, p. 165-166. One has to be especially careful about repeating reliable
hearsay to individuals other than the intended victim, in which case the rules are more
strict. See Hafetz Hayyim, Bear Mayim Chaim, Lashon Hara, 10:5.
- Vayikra 19:16. At least in the case of physical harm, the
intent of the one who is harming others is not relevant according to many authorities; See
Aaron Kirschenbaum, "The Bystander's Duty to Rescue in Jewish Law," Journal
of Religious Ethics 8:204-226 (1980).
- See, e.g., Rambam, Sefer Hamitzvot, Mitzvot Lo
Taaseh, 297; Hafetz Hayyim, Bear Mayim Chaim, Rekhilut
9:1. For an English article, see Aaron Kirschenbaum, "The Bystanders Duty to
Rescue in Jewish Law," Journal of Religious Ethics 8:204-226 (1980).
- To understand why halakha does not accept the inviolability
of professional confidences generally, see R. J. David Bleich, Contemporary Halakhic
Problems II:74-80R. J. David Bleich, Contemporary Halakhic Problems II:74-80; R.
Yaakov Breisch, Helkat Yaakov 3:136R. Yaakov Breisch, Chelkat Yaakov 3:136; and R.
Eliezer Waldenberg, Tzitz Eliezer 13:81R. Eliezer Waldenberg, Tzitz Eliezer 13:81.
- An example would be a person who tells a Rabbi that he will
soon kill his spouse.
- See Ahavat Chesed 20:2 (by the Hafetz Hayyim); R.
Eliezer Waldenberg, Tzitz Eliezer 13:81; R. Abraham Isaac Kook, Mishpat Kohen
- For an elaboration on that view, see Pitchei Teshuvah,
Yoreh Deah 157(4).
- It should be noted that if the Rabbi is threatened with
actual physical harm or a jail sentence (both of which cannot be imposed currently under
American law), the matter is more complicated and a consultation with a posek would
- This is certainly true with respect to the New Jersey
Statute which states that the "cleric alone" may waive the privilege if the
communication pertains to a "future criminal act". Although it is difficult to
predict with certainty how other states would construe their statutes, it is possible that
courts would adopt an approach akin to the "Model Rules" of ethics established
for lawyers, which permit (but do not require) lawyers to divulge confidences in order to
prevent "substantial bodily harm." Model Rules, Rule 1.6. See also Macdonald
v. Clinger, 446 NYS2d 801, 805 (App. Div. 1982) (despite psychiatrist-patient
privilege, disclosure of confidential information by psychiatrist is justified whenever
there is a danger to the patient, his/her spouse or another person), and Curry v. Corn,
277 NYS2d 470 (Sup. Ct. 1966) (physician not liable for informing husband of wifes
medical condition although physician was aware that husband would use information in
pending matrimonial action). Of course, only a knowledgeable lawyer would be able to
assess accurately whether the secular law would provide an exception in a particular case.
- For example, a lawyer may counsel the Rabbi in such a case
to have another person present during the communications, or to state clearly to the
"penitent" in the presence of witnesses that the Rabbi is not functioning in his
role as spiritual advisor for purposes of this communication.
- An example would be a congregant who tells a Rabbi that he
is engaged in a financial fraud against a fellow Jew.
- See Pithei Teshuvah, Yoreh Deah 157(4); Sefer
ha-Hinnukh, Mitzvah 585Sefer ha-Hinnukh, Mitzvah 585; R. Joseph Teomim, Peri
Megadim, Orah Hayyim 656R. Joseph Teomim, Peri Megadim, Orach Hayyim 656; R.
Moshe Schreiber, Hatam Sofer, Hoshen Mishpat 176R. Moshe Schreiber, Hatam Sofer, Hoshen
Mishpat 176; and R. Elijah of Vilna, Be'ur ha-Gra, Yoreh Deah 157:5R. Elijah of Vilna,
Be'ur ha-Gra, Yoreh Deah 157:5. An additional argument supporting the
exemption in this case is that nothing is gained when one person saves another a sum of
money when the act of saving costs an equally significant sum. See Aaron Kirschenbaum,
"The Good Samaritan: Monetary Aspects," J.Rabbi Aaron Kirschenbaum, "The
Good Samaritan: Monetary Aspects," J. Halacha & Contemporary Society
17:83, 84-87 (1989).
- See Rabbi Alfred Cohen, "Privacy: a Jewish
Perspective", J. Halacha & Contemporary Society 1:53, 82-87 (1981) in
which the author argues that public welfare may sometimes override individual welfare in
determining whether or not it is appropriate for a professional counselor, such as a
lawyer or physician, to divulge confidential information (so that there may be cases,
according to Rabbi Cohen, when a professional counselor may be justified in not revealing
information necessary to rescue an individual from harm, in order to preserve the
community value of people being able to place trust in their professional counselors).
However, it is unclear to what extent Jewish law would actually accept the
"policy" arguments advanced by Rabbi Cohen in the context of rabbinic
- An example would be a case where a person tells a Rabbi that
he/she is not allowed to marry according to Jewish law a particular person that he/she
expects to marry, and the potential spouse is unaware of the problem.
- See Minchat Chinuch 239 who adduces that every case
in which the positive obligation to engage in rebuke is found, the negative command not to
stand by is also applicable, and this duty not to stand by applies to religious danger to
a person even when there is no physical or financial component. This insight is discussed
in Minchat Yitzchak 5:8(13) and Yabia Omer EH 8:12(20).
- Rema, Yoreh Deah 334:48; see also Rema, Yoreh Deah
328:12 Rema, Yoreh Deah 232:12 and 228:47. See also remarks of Pithei Teshuvah,
Yoreh Deah 334:19Pithei Teshuvah, Yoreh Deah 334:19 and Arukh ha-Shulhan,
Yoreh Deah 334:42Arukh ha-Shulchan, Yoreh Deah 334:42. However, see Minchat
Chinuch 239, cited in note 28 supra, who clearly indicates that a case involving
religious harm should not be viewed any more leniently than a case involving monetary
- Rema, Yoreh Deah 228:47 explicitly directs
that one must take some risks to strengthen religious principles even if it means
challenging the secular law.
- See Pithei Teshuvah, Yoreh Deah 334:19. Thus,
if one is dealing with the mere possibility of a lawsuit, and the possibility of having to
pay a large judgment in the end, there may be less of an argument to allow the exemption.
- For an excellent discussion of the issues pertaining to Dina
Demalkhuta Dina, see Rabbi Herschel Schachter , "Dina Demalchusa Dina: Secular
Law As a Religious Obligation," J. Halacha & Contemporary Society 1:103
- See, e.g., Rema, Choshen Mishpat
- See Rabbi Schachter, supra note 32, at 122. Cf. Shach,
Yoreh Deah 165:8, and Beis Lechem Yehuda loc. cit.