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Suing Your Rabbi: Clergy Malpractice in Jewish Law
Rabbi Mark Dratch

Suing Your Rabbi: Clergy Malpractice in Jewish Law
Rabbi Mark Dratch

In the spring of 1979 insurance companies began offering clergy malpractice insurance covering damages "arising out of any acts, errors, or omissions because of the counseling practices of a pastor."1 On March 31, 1980, the parents of Kenneth Nally sued California's Grace Community Church of the Valley and its pastors, alleging that negligent counseling resulted in the suicide of their son.2 This first legal action against a clergyman for malpractice has aroused interest in both legal and religious communities. Is clergy malpractice actionable in a civil court, or is such judicial review an infringement of the First Amendment guarantee of free exercise of religion?

In the Jewish commmunity, this question may be addressed in reference to halacha, the Jewish legal system with roots in biblical legislation, which has continued in uninterrupted development to this very day. Can rabbis be sued in a Jewish court, under Jewish law, for malpractice?

Let us briefly consider the United States Constitutional issue before proceeding with a halachic evaluation.

Legal authorities agree that clergymen, despite the special status of thier profession, are liable for intentional torts. In the past, religious leaders have been held liable for fraud,3 kidnapping,4 assault and battery,5 and false imprisonment.6 Our question of clergy malpractice is based upon a new tort theory, relating to professional misconduct through the failure to exercise a certain standard of care applicable to other members of the profession.7

Opponents of this theory maintain that pastoral counseling is a uniquely spiritual and solely religious activity with no secular psychotherapeutic counterpart, and therefore protected by the First Amendment.8 In addition, because the nature of this counseling varies with each religion and sect, the court, in order to adjudicate a malpractice claim, would have to evaluate a religion's tenets and assess a clergyman's compliance with his beliefs. Concerning such scrutiny, the Supreme Court ruled in Lemon V. Kurtzman, "This kind of state inspection and evaluation of the religious content of a religious organization is fraught with the sort of entanglement that the Constitution forbids."9

Defenders of the theory distinguish between purely sacerdotal functions and those which are not unique to a clergyman.10 The former are protected by the First Amendment, the latter are not. Judicial precedent for this distinction is found in Cantwell v. Connecticut, in which the Court held that the free exercise clause "embraces two concepts, freedom to believe and freedom to act. The first is absolute, the second cannot be." "Crime is no less odious," the Court observed, "because sanctioned by what any particular sect may designate as religion."11 Tort claims may therefore be actionable. In addition, advocates of the clergy malpractice theory maintain that since counseling has a secular counterpart, it is subject to judicial imposition of minimal standards of care and competence.

The California Appellate Court in 1987 found that the Nally case is not one of clergy malpractice, but is, rather, a question of a counselor's "negligent failure to prevent suicide" and "intentional or reckless infliction of emotional injury causing suicide" - the counselor happening to be a clergyman.12 In November, 1988, the California Supreme Court dismissed the case, ruling that the legal duty of care imposed upon licensed counselors did not apply to the clergy. "The Legislature has recognized that access to the clergy for counseling should be free from state-imposed counseling standards," wrote Chief Justice Malcolm Lucas. "Extending liability to voluntary, noncommercial and noncustodial relationships is contrary to the trend in the Legislature to encourage private assistance efforts."13

Grounds for clergy malpractice in a rabbinic court are more far-reaching than those in a civil court. While the civil courts are restricted by the First Amendment from adjudication of complaints in matters concerning religious law, no such inhibitions exist in halacha, and such litigation is certainly subject to judicial review by a rabbinic court operating under Jewish law. Rabbis perform many functions. They are judges and arbitrators in civil, economic, and personal disputes, supervisors of the production of ritually-fit food and various religious objects, teachers, preachers, and communal leaders. We shall here deal with the halachic implications of rabbinic malpractice with regard to two of these functions: that of judge or decisor, and that of counselor.

What is the liability of rabbi qua judge whose misapplication or misinterpretation of Jewish law causes unlawful financial loss? What if the rabbi settles a monetary dispute improperly? What is his liability if he certifies non-kosher food as kosher, causing financial loss by rendering unusable the vessels in which such food was subsequently cooked?

Shulchan Aruch, Choshen Mishpat no. 25, codifies the parameters of judicial malpractice. If the rabbi's decision contradicts explicit legal decisions of the Talmud or Codes (devar mishnah) the decision is reversed and proper judgment enforced.14 If such damages are non-recoverable - such as by the absence of the person to whom the improper award was originally made, or because the non-kosher foodstuffs were mixed with kosher, rendering the entire mixture unfit - the rabbi is not liable for the damages he caused. The reason for this exemption is to protect competent, licensed professionals from fear of litigation due to nonnegligent errors.15 Ramo (R. Moses Isserles, 1525-1572), however, maintains that rabbis are liable for unrecoverable damages caused by their misapplication of law.16

If the rabbi's error was discretionary (shikul hada'at), i.e., due to his interpretation and resolution of conflicting opinions in a manner contrary to legal tradition, liability is a function of both his expertise and his authority. If he is an expert in the area of law in dispute and either has official license to exercise judicial authority or serves by consent of the litigants, the erroneous decision is reversed, and the rabbi is not liable even if proper restitution cannot be made to the damaged party. If, however, the rabbi as an expert judge acts without either proper license or consent, or if he is a non-expert whose judgment is accepted by the parties, a mistaken interpretation is upheld; however, if the rabbi personally enforces his erroneous ruling, he is liable. If he did not personally enforce his decision, he is liable only if the damages are unrecoverable. Ramo obligates him in the latter case, maintaining that the original ruling is upheld and that the judge is liable for damages.

The halacha in malpractice by a rabbi in his judicial function is, thus, fairly clear cut. That is not the case with regard to his role as a counselor.

What is the liability of a rabbi qua counselor for the advice he gives? What would be the outcome of the Nally case if it were presented to a Jewish court? A halachic inquiry into such rabbinic malpractice must evaluate the nature of the counsel offered by a clergyman to the individual seeking his counsel as well as the advisor-advisee relationship.

The dispensation of bad advice falls under the general biblical proscription, "Thou shalt not place a stumbling block before the blind" (Lev. 19:14). The Sifra, the halachic Midrash to the book of Leviticus, maintains that in this verse blindness is not a physical ailment, but rather a trope for ignorance, and the "stumbling block" is a metaphor for bad advice. Thus,

"Before the blind." Should he ask you: "Is the daughter of so and so qualified to marry a Cohen (i.e. descendant of the priestly family)?" do not answer him "Yes, she is qualified," when she is really unfit. If he comes to consult you do not give him wrong advice. Do not say to him: "Go out early," when robbers would waylay him: "Go out at noon," that he should get sunstroke. Do not say to him: "Sell your field and buy yourself a donkey," and then by a trick take it from him.17

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