Confidentiality and Rabbinic Counseling
- An Overview of Halakhic and Legal Issues
Rabbi Michael Broyde
Rabbi Yona Reiss
Nathan Diament, Esq.

Notes

1. Under the Federal Rules of Evidence, a federal court will apply the privilege rule of the state in which the court is sitting.
2. It should be noted that the penitent need not be a member of the clergyman’s 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.
3. 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 Connecticut’s 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.
4. 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 penitent’s behalf.
5. Delaware and Maryland are among the states that grant the privilege to the clergy.
6. Other states in this category include Alabama, California, Colorado and Pennsylvania.
7. See People v. Drelich, 123 A.D.2d 441 (1986).
8. 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.
9. 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.
10. 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).
11. 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.
12. 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.
13. See Yuma 4B (source of obligation not to betray information revealed in confidence) and Magen Avraham, Orach Chaim, 156:2.
14. 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; Be’ar 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, Be’ar Mayim Chaim, Lashon Hara, 10:5.
15. 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).
16. See, e.g., Rambam, Sefer Hamitzvot, Mitzvot Lo Ta’aseh, 297; Hafetz Hayyim, Be’ar Mayim Chaim, Rekhilut 9:1. For an English article, see Aaron Kirschenbaum, "The Bystander’s Duty to Rescue in Jewish Law," Journal of Religious Ethics 8:204-226 (1980).
17. 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.
18. An example would be a person who tells a Rabbi that he will soon kill his spouse.
19. See Ahavat Chesed 20:2 (by the Hafetz Hayyim); R. Eliezer Waldenberg, Tzitz Eliezer 13:81; R. Abraham Isaac Kook, Mishpat Kohen 144.
20. For an elaboration on that view, see Pitchei Teshuvah, Yoreh Deah 157(4).
21. 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 be needed.
22. 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 wife’s 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.
23. 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.
24. An example would be a congregant who tells a Rabbi that he is engaged in a financial fraud against a fellow Jew.
25. 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).
26. 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 counseling.
27. 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.
28. 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).
29. 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 harm.
30. 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.
31. 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.
32. For an excellent discussion of the issues pertaining to Dina Demalkhuta Dina, see Rabbi Herschel Schachter , "Dina De’malchusa Dina: Secular Law As a Religious Obligation," J. Halacha & Contemporary Society 1:103 (1981).
33. See, e.g., Rema, Choshen Mishpat 369:11.
34. See Rabbi Schachter, supra note 32, at 122. Cf. Shach, Yoreh Deah 165:8, and Beis Lechem Yehuda loc. cit.

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