Coronavirus and the Clergy-Penitent Privilege: Guidance for Rabbis

Jean-Marc Favreau and Michael Gan of Peer, Gan & Gisler, LLP share guidance around confidentiality between rabbis and community members. While this guidance is intended to raise awareness about issues related to maintaining confidentiality between rabbis and those they minister to, it is not intended as legal advice, nor should it substitute for your own due diligence in researching these issues and options or obtaining legal advice that could address your specific circumstances. If you have further questions, feel free to contact the CCAR or Jean-Marc Favreau or Michael Gan at Peer, Gan, & Gisler LLP.

---

Given the current COVID-19 pandemic and its impact on how we all are communicating and doing our jobs, many rabbis are utilizing different forms of technology to communicate with their congregants as well as to conduct and broadcast services, sermons, and other events. These unique circumstances offer a good opportunity to review and offer some guidance on some of the fundamental principles surrounding the Clergy-Penitent Privilege and how it is impacted when communications do not take place in person.

Privileged Communications Generally

• Generally, communications between a member of the clergy and an individual who comes to them for counseling, spiritual guidance, or other reasons that would reasonably be considered private are privileged under state laws and court evidentiary rules. In the simplest terms, with very limited exceptions, a rabbi cannot be forced to disclose such communications.

• It is essential to understand the particular confidentiality laws of your state, as there could be some differences in defining who holds the privilege, who is entitled to its protections, what types of communications are confidential, and what types of communications must be reported to authorities.

• Beyond legal rights and obligations regarding confidentiality, rabbis also have an ethical responsibility to keep the types of communications described above private and secure.

• Implicit in these legal privileges and ethical obligations is the requirement that the rabbi take reasonable steps to prevent the disclosure of such communications. Leaving a notebook containing personal information about a congregant out in a public space where it could be read by others is as much an ethical violation as letting private information about a congregant slip out during a conversation with another individual.

The Effect of Technology on the Privilege

• Significantly, the privilege (and your ethical obligations) attach equally to in-person meetings as they do to communications that take place over the phone, videoconferencing (e.g. Skype, Zoom, Facetime), or via other communication platforms.

• The important distinction between in-person and phone/video communications lies in how and whether the communications are kept secure. Whenever technology is introduced, the rabbi should exercise some due diligence to ensure that the software/tools used have security features (e.g. passwords, encryption technology like VPN, etc.). The same goes for the servers and internet connections used.

• Should a rabbi fail to use due diligence to afford some security to their communications with individuals who come to them for counseling, spiritual guidance, or the like, they could be subject to some civil legal liability should that information be exposed.

Suggested Guidelines

• When using technology to meet with congregants/others you may want to ask yourself:

• Are we going to be discussing issues that are likely to be privileged?

A discussion about a congregant’s marital problems is a lot different and may require more security measures than a discussion about what props are needed for the Purim shpiel. 

• What technologies are out there that would allow me to communicate best with individuals? (See below)

• Does the individual feel comfortable with the technology?

Individuals may feel more or less comfortable with a video option versus just talking over the phone.

• What are the security features and privacy provisions of the technology you are using?

You should familiarize yourself with the terms and conditions of the technology you are using to find out, among other things:

                        What type of security is utilized, if any?

                        Is the information recorded on a server somewhere?

                        Who owns the information that is broadcast and/or stored?

Have I used a strong password to protect my account and network? Did my congregant take the same steps?

• Alert the individual that conversing over these technologies may not offer the concrete privacy protections that an in-person meeting would have, but that you will do your best to keep the information privileged and safe.

• Remind the individual to be in a private setting so that their side of the conversation will not be overheard (which would run the risk of undermining the privilege).

• Install a Virtual Privacy Network (“VPN”) on any devices you use to communicate with congregants over the internet. Many VPN services exist at little or no cost, and this article will help you find a good one.

• Ensure your videoconferencing or other communication service has basic security protections, including “end to end encryption”. Even most free services have this, but their paid plans may afford extra security (any additional costs should be covered by your congregation). For example:

• Services such as Zoom offer plans beyond the free version that provide extra protections. This includes a HIPPA-compliant plan that health care providers use with patients. This might be overkill, but it would provide the greatest protections.
  • Services such as GoToMeeting and Cisco WebEx have built in “end-to-end encryption” and customizable security tools

• Many other services also tout secure communications including popular options such as Skype, Google Hangout and FaceTime.

• Whatever software you use, be sure you read the documentation on the website and check whether the encryption or other features are the default or have to be enabled.

• Make sure you keep your software/technology up to date, as these companies often issue security patches.

Most of us agree that nothing can replace face-to-face communication when ministering to individuals, but in light of the current social-distancing recommendations, alternate technologies can serve as a good – temporary – substitute. As long as you fully inform yourself about the security features of the software and networks you are using and about how to enable those features, you are doing your due diligence to protect yourself and those you serve.