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Q: What is the difference between "privileged" communications and "confidential" communications?

A: The concepts of privilege and confidentiality are often confused. The "clergy-penitent privilege" is a rule of evidence that protects clergy from having to testify in judicial proceedings about communications made to them in confidence while acting in their professional capacity as spiritual advisors. The important point to note is that privileges pertain to testimony in judicial proceedings, including courtroom testimony and depositions.

"Confidentiality" is a much broader concept, and refers to a duty not to disclose to anyone the substance of communications shared in confidence. Confidentiality is distinguished from privilege in two ways. First, the duty of confidentiality is not limited to judicial proceedings. Second, it is an ethical rather than a legal duty. While the impropriety of disclosing confidential information is universally acknowledged, few clergy have been found legally accountable for unauthorized disclosures. This is because the duty of clergy to preserve confidences has traditionally been considered to be a moral rather than a legal obligation. No law prevents clergy from sharing confidences. However, in recent years a few clergy have been sued for divulging confidences on the basis of an alleged "duty of confidentiality." Only two courts have found clergy liable for divulging confidential information.Any other cases addressing this important topic will be addressed fully in this newsletter.

Richard Hammar is an attorney, CPA, and best-selling author specializing in legal and tax issues for churches and clergy. A graduate of Harvard Law School, he is the author of more than 100 books, including Pastor, Church & Law and the annual Church and Clergy Tax Guide . He also writes the Church Law & Tax Report and has contributed to numerous journals and publications.

This article first appeared in Church Law & Tax Report, September/October 2007.

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Copyright © 2007 by Christianity Today International/Church Law & Tax Report. All rights reserved.

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