Confidentiality: Can you really count on your rabbi?

You’re experiencing a horribly painful episode in your life.  You have no one to confide in – even, maybe especially, your spouse – but you have a burning need to tell “someone.” Your spouse, indeed, may actually be the victim of what you’ve done wrong, or what has befallen you. Maybe you engaged in infidelity, and understandably “can’t” tell.  Maybe you’ve squandered your joint savings through gambling, and telling her would likely explode your marriage. Or, maybe you’ve been diagnosed with a terminal illness that, you believe, your spouse will simply be unable to cope with. You’re in extremis, and truly lost.

If, you had a true confidante (which you don’t) – that is, a person who would take your secret to the grave – that’s whom you would share your troubles with. Yes, the confidante might not have a legal or (professional) ethical obligation to maintain your confidences; but you know the extremely discreet confidante would exhibit total discretion.

But, just maybe, you’re the kind of individual who finds true comfort in revealing your darkest and deepest problems to a rabbi – for you, perhaps, the closest you get to God Himself.  So you make your revelation. And you have full expectation that he can be counted on to hear your story in confidence.  So much so that you don’t even ask, as some might ask their lawyer, “This is totally confidential, right?” And perhaps, the rabbi doesn’t even consider for himself whether he can or will keep sacred whatever you disclose, even if the conduct is truly horrendous or may adversely impact innocent people.

That might be a mistake. Maybe the rabbi will feel that your infidelity is so disturbing that the only way for you to try to repair it is for your spouse to be told. And to address it, if you yourself are unwilling to do tshuva by telling your spouse, the rabbi will feel forced to initiate the interchange himself. Perhaps, separately, the rabbi might feel, particularly given that your spouse is also the rabbi’s congregant, that the rabbi must disclose.  And, to be sure, the rabbi’s views here in concluding that disclosure is warranted are hardly irrational, even if you understandably want your confidences maintained by the rabbi.

Now, if you were Catholic and came to your priest with these confidences in a confessional setting, and did penance – asking God for forgiveness for the adultery or asset waste, as the priest would instruct – you would likely be safe from disclosure. A critical sacrament of the Church is the inviolability of the confessional: what you tell a priest in the confessional remains there forever, no matter how disturbing the disclosure. And while an argument could be made that the rule’s strictness should give way where innocents – call them, “victims” – might suffer harm unless your secret is revealed, the Church’s tenets don’t countenance compromise over it.

So perhaps if you’re a potential victim of a recidivist perpetrator who had previously confessed his wrongdoing to his priest, you would want the priest to have disclosed the horrible things that the perpetrator had already done.  Thus, the priest’s inability to do so under Church doctrine would truly disturb you as a victim.  But from the perspective of the perpetrator who confesses to a priest in search of comfort for his wrongs, and maybe even absolution as is possible under Church doctrine, the priest’s actual duty to preserve the utmost confidentiality of the confessional, as dictated by the Church, is a hallmark of his belief. The same would be the lawyer’s obligation to maintain to her grave the confidentiality of what a client says in the “confessional” of the attorney-client relationship.

But, to return to the rabbi, consider this: In 1996, Chani Lightman, then still married, confided in her family rabbi that she had stopped going to the mikvah because her marital relationship had broken down and she intended no further martial relations with her husband. She also confided that she was seeing another man in a social context. Ms. Lightman sued her husband for divorce and sought custody of their four children. But the rabbi decided to tell Mr. Lightman what Ms. Lightman had revealed, and Mr. Lightman submitted the rabbi’s affidavit (and that of a second rabbi) to the court.

Ms. Lightman was beside herself over the rabbis’ disclosures. The first rabbi defended what he had done by claiming that her statements to him were not confidential because she “never requested spiritual guidance.”  Beyond that, he said, under Jewish law he was actually “obliged” to relay the information to her husband in order to prevent conjugal relations with his wife that would violate the Torah, as well as to shield the couple’s children from her conduct. Another rabbi, who also told the husband, argued that when Ms. Lightman confided in him, she was accompanied by her friend (apparently to give Ms. Lightman comfort) which made him conclude that the discussion weren’t confidential.

The Lightman situation became a famous court case – Ms. Lightman sued the rabbis in secular court for “intentional infliction of emotional distress” in betraying her by disclosing what she believed were confidential communications. New York’s highest court decided the narrow issue over her claim that the rabbis breached a legal right to confidentiality.  The Court held, however, that the breach of the rabbis’ fiduciary duties to her did not entitle Ms. Lightman to sue them.

The legal nuances involved in the lawsuit are best left for another day. The issue here is confidentiality. Whatever their reason for doing so, these rabbis decided not only that their conversations with Ms. Lightman didn’t warrant confidentiality, but also, they basically argued, she didn’t say the talismanic words demanding confidentiality. No lawyer, worth her salt, by contrast, would make that argument if, for some reason, she disclosed her client’s confidential conversation with her.

Put simply, if one goes to his lawyer with a troubling confidence – perhaps even an admission of murder – the client should be unconcerned that the lawyer would repeat the confidence.  Rabbis, however, are moved by different considerations.  Those considerations may be their interpretations of the Talmudic “back and forth” or from whom they received smicha. Unlike the rabbis in Ms. Lightman’s case, they may actually consider her disclosures inviolable. Who knows? Importantly, though, someone who visits her rabbi in a highly emotional state would be unlikely to have the presence of mind to obtain clarity over how the rabbi’s will necessarily deal with a confidence.

Remember, the person is in extremis. She should know, going in, that what she tells the rabbi will stay with the rabbi — especially when the courts, as in the Lightman case, do not give the confider the confidence of knowing that if the rabbi might be subject to legal sanction for a disclosure. You might believe that Ms. Lightman is the wrongdoer who doesn’t deserve the rabbis’ discretion. And maybe many would hold that view. But that’s not, and should not be, determinative.

Putting yourself in Ms. Lightman’s situation – she went to a rabbi for consolation, believing that she was telling her secret to the closest thing she had to God.  If she were Catholic, she would be entitled to have full confidence in her priest by an ethic enforced by a Church sacrament.  We, however, are not Catholics.  So, Jews might be better off simply saying shabbat shalom or “it’s all good” the next time we see our rabbi, no matter what might trouble us and no matter how “bad” it might really be.

Surely a rabbi wouldn’t be wise having a sign on the study wall saying, “Don’t Count On Me Keeping Your Confidences.” Nonetheless, the rabbi certainly should let the communicant know unmistakably, however gentle must be the presentation made, that the person’s disclosure to the rabbi may not necessarily end up “in the vault.”
   

 

 

 

About the Author
Joel Cohen is a white-collar criminal defense lawyer at Stroock in New York and previously a prosecutor. He speaks and writes on law, ethics and policy (NY Law Journal, The Hill and Law & Crime). He teaches a course on "How Judges Decide" at Fordham Law School. He has published “Truth Be Veiled,” “Blindfolds Off: Judges on How They Decide” and his latest book, "I Swear: The Meaning of an Oath," as well as works of Biblical fiction including “Moses: A Memoir.” Dale J. Degenshein assists in preparing the articles on this blog.The opinions expressed in this article are not necessarily those of the Stroock firm or its lawyers.
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