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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.

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congregations Rabbis

Five Minutes

“Rabbi, Do You Have Five Minutes?”

I am asked this question all the time.  As I am walking out of the Oneg  Shabbat, as I am finishing preparations for a class, as I am setting up for Torah Tots, someone stops me and says “Rabbi, do you have five minutes?”   In the early days of my rabbinate, I always said ‘yes’.  Standing in the hallway, I waited for the question about the meeting agenda, a mitzvah project, or availability for an unveiling.

Those questions rarely surfaced.  In the requested five minutes I have heard a story about an abusive partner (a fellow temple member), a deceased mother who died young when hit by drunk driver, and a myriad of medical diagnoses.  Impending divorces seem to often be shared after the request for five minutes.  Needless to say, these were never just five minute conversations, and rarely appropriate for the hallway.

I have gone through many stages in my understanding of this request.  At first I took it at face value and found myself surprised over and over again. Then I learned to realize that the request for five minutes was like a code. I had cracked the code and wasn’t surprised when a much more significant conversation was needed.  Not surprised, but annoyed nonetheless.  “Why can’t she make an appointment when I can give her my full attention?”  “Why doesn’t he realize that this is not a five minute conversation?”  “Surely he realizes that I am about to teach/on my way home/in between meetings?”

Why is it that people use a phrase that minimizes what is often far from minimal – death, loss, disappointment, heartbreak?   I have two thoughts – one that focuses on those making the “five minute” request, and one that is about us as rabbis.  Making an appointment to talk to the rabbi adds weight and gravity to the subject at hand.  To actually schedule a time, come in to the office, and sit behind a closed door is to acknowledge a depth of need that many may not yet be able to confront.   Asking for “five minutes” may be a gentle entry into a difficult subject, a way for the individual to try to hold on to the notion that the crises they confront is not as challenging as they fear.  In granting the five minutes that is really 45 minutes, we may gently usher those we care for along their path of growth and understanding.

But I think there is something even more significant in this interaction about how we see our rabbinic work and the message we convey to others.   What does it mean when we say we are busy, that we have a lot to do? Many of us list meetings to attend, classes to prepare and teach, money to raise, boards to train.  We would all say that being present for our community, sharing in their joys and sorrows is also ‘what we do’.  But being present outside of formal life cycle events often can’t be scheduled in the same way as the planning meeting for mitzvah day, and is what gets lost in the crush of an overburdened schedule.

The turning point for me in understanding this was a conversation that I had with a women who had asked for five minutes.  After our non-five minute conversation I asked her why she hadn’t made an appointment.  She said, “Rabbi, you are always so busy and I know how much you have to do.  I didn’t want to add to that.”  I have thought about these words often, and with some shame.  I am busy and I do have a lot to do – and one of the most important of those things I have to do is to be fully present for people like her and all those others who only ask for five minutes. How many times, in my busy-ness, have I failed to convey this?

I have tried to shift my mindset, to make space for the meaningful interactions that happen as people walk in with their kids for tutoring or religious school or to prepare mailings or wait for a luncheon. Being available in all of the in-between times doesn’t interrupt my work, it is my work – holy and sacred work for which I am profoundly grateful.

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Betsy Torop is the CCAR Manager for Member Engagement and the Rabbi at Congregation Beth Shalom, Brandon, Florida.