The Church's Lawyers

Greg raises some interesting issues in his description of the portion of the review board's report on the handling of sexual abuse by the clergy. This is an issue I have been thinking and writing about for a while, so I wanted to make a few observations about what should be considered "shameful" in the involvement of lawyers in these dreadful cases. Three different types of behavior have to be considered:

1. The behavior of bishops in treating complaints of sexual abuse as "legal" problems, i.e. as sources of potential legal liability for the diocese, and turning to lawyers as their principal advisers, rather than identifying the complaints as serious pastoral problems that must be remedied (and prevented in the future). Bishops themselves "legalized" the problem, or acquiesced in its being treated primarily (or exclusively) as a legal problem. Hence the large numbers of cases in which confidential settlement agreements "ended" specific complaints without any real consideration of the victims' suffering, and with no public exposure of the abusers -- and we all know the rest.

2. The behavior of lawyers, which had two aspects: failure as counselors and failure as litigators. As counselors: to what extent should lawyers have advised their bishop clients that treating a sexual abuse complaint as just another tort case, in which the principal goals should be minimization of financial damage avoidance of negative publicity, and deterrence of future claimants was: (a) wrong in light of the Church's spiritual responsibilities; and (b) not in the Church's institutional interest in the long run? As litigators: once claims were filed, to what extent did engaging in zealous advocacy (as one would for any client) in depositions, the court room and other litigation contexts itself undermine the Church's spiritual obligations?

3. The behavior of the Church's insurors: To what extent did hard ball litigation and scorched earth tactics take place once the insurance companies took over the litigation? It strikes me that many of the problems reported in the litigated cases sounded like insurance defense lawyers just acting the way they usually do. I do not have a good grasp, however, of when the insurance company was calling the shots, and when the bishps were.

It strikes me that the most "shameful" behavior here was really (1): the decisions of the bishops to treat these as legal problems that could be buried with a little money and lots of silence. That decision reflected their own desire not to deal with the problems in any serious way and to avoid any public scrutiny of either what happened or the way they dealt with it. To have expected lawyers to be the bishops' "conscience", as in (2), may have been a lot to expect from their lawyers, though this issue raises very interesting questions about a lawyer's ethical responsibilities, particularly when representing a religious organization that theoretically holds itself to a higher standard.

The question of how lawyers should have acted in litigators in these cases is a tough one: surely they should not have been expected to treat every allegation of fact, legal theory and claim for damages in every plaintiff's Complaint as truth not to be contested. On the other hand, recognition of their client's special character and responsibilities should have led at least to avoiding brutal ad hominem attacks on the alleged victims. Greg's colleague, Pat Schlitz, has pieces in COMMONWEAL, America, and Litigation arguing for fairly broad latitude for the Church in defending these cases. While I generally agree with Pat, my own piece in COMMONWEAL (see sidebar) uges a somewhat more constrained role for the Church in defending these cases.