Confidentiality and Rabbinic Counseling
- An Overview of Halakhic and Legal Issues
Rabbi Michael Broyde
Rabbi Yona Reiss
Nathan Diament, Esq.
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In this case, many halakhic authorities rule that the danger to the life or physical well being of another take precedence over one's own financial needs. [19] While one may find halakhic authorities who rule that the obligation to save the life of another is suspended in the case of serious financial loss, [20] it is improper for rabbis to function in accordance with that view. Accordingly, rabbis should ensure that steps are taken to prevent the possibility of any such physical harm befalling another. [21] In addition to being required by halakha, it is possible that secular law would support revealing confidences when necessary to prevent physical harm. [22] Additionally, it appears unlikely that any communal backlash would result as a result of a Rabbi fulfilling his halakhic obligation to rescue others from physical harm. To the extent that secular law does not support this conclusion (or the halakhic conclusion in other cases discussed infra) in a given jurisdiction, a Rabbi may want to consult with a lawyer to determine if there is a way to observe his halakhic obligations without running afoul of secular law requirements. [23]

2. Through a confidence told to him, a Rabbi is aware of the fact that improper financial harm will befall another. [24] If the Rabbi reveals the confidence, he will run the risk of suffering financial harm through a lawsuit for damages related to the breach of confidence.

In this case, if the financial harm is severe and likely, many halakhic authorities rule that one is exempt from the duty to prevent financial harm to another, when the financial harm to oneself through this activity is greater than 20% of one's true worth, including future income.[25]  In the context of revealing certain confidences, a Rabbi could arguably face a loss of such an amount if there is a chance of his being sued in secular court for damages resulting from breach of confidentiality or if such breach could result in the loss of his job. However, even in such a case, the proper and pious activity would be for the Rabbi to take steps to prevent harm from occurring despite the fact that it could result in harm to the Rabbi. Of course, the Rabbi should follow the guidelines set forth above in Section II.A. ("Repeating Harmful Information and Truth Telling"). Additionally, it may be appropriate for the Rabbi to take into account the possible "chilling effect" that revealing any confidences may have on his community. [26]

3. Through a confidence told to him, a Rabbi is aware of the fact that religious harm will befall another. [27] If the Rabbi reveals the confidence, he will run the risk of suffering financial harm through a lawsuit for damages related to the breach of confidence.

Assuming that the information revealed to the Rabbi is reliable as a matter of Jewish law, the Rabbi has an obligation to take steps to protect others from religious harm. [28] However, if the financial harm that would be suffered by the Rabbi as a result of divulging the information is severe and likely, a claim could be made that the Rabbi would be exempt from the duty to prevent religious harm to another because of the intense financial harm that will befall the Rabbi. [29] Of course, as we pointed out in the previous section, such exemption (according to the authorities who rule that there is such an exemption) would only be applicable in cases of severe financial duress. Additionally, Rabbis should hesitate to avoid doing that which is religiously proper out of fear of punishment from the government. [30] Accordingly, it may be halakhically reasonable to limit the exemption in cases of religious harm to instances where the severe financial harm to be suffered by the rescuer is certain, and not merely possible. [31] However, even in a case where the grounds for permitting such an exemption do exist, revealing information when (and to the extent) necessary to prevent religious harm is certainly the proper and pious activity, subject to the guidelines set forth in the previous sections.

One final note: To the extent that the secular law is inconsistent with halakha with respect to these issues, the issue of Dina De’Malkhuta Dina (the obligation of Jews to follow the law of the land) invariably comes to mind. The halakhic parameters of the concept of Dina De’Malkhuta Dina are extremely complex and beyond the scope of this memorandum.[32]  However, suffice to say that the concept of Dina De’Malkhuta Dina is mainly directed towards the sphere of taxation and certain other monetary matters (such as landlord-tenant regulations or certain creditor-debtor regulations aimed for the betterment of society [33]), but is not applicable when the secular law runs directly contrary to the exercise of a religious obligation. [34] Thus, to the extent that the halakha mandates disclosure of information, then disclosure is obligatory even if it will result in an inevitable violation of secular law. The discomfort heaved upon Rabbis due to the entanglement of secular law requirements with the dictates of halakha only serves to underscore the necessity for a more conscientious application of the free exercise clause of the U.S. constitution by the secular courts.

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