Sex, Lies And Ethics

Hardball litigation tactics are neither new nor particularly newsworthy—except when the aggressive litigant claims to represent God on earth. That scenario has driven the recent spate of articles commenting on the Catholic Church's increasingly bare-knuckle legal response to those accusing priests of sexual abuse. Church lawyers have repeatedly counterclaimed against the parents of child victims.¹ They countersued a single mother who, seeking a male role model for her boys, allowed them to spend the night at the parish sacristan's apartment.² They have moved to reveal the names of pseudonymous plaintiffs in a tactic that appears to have no other purpose than intimidation.³ They have asked graphic questions regarding the intimate details of sexual abuse, as well as detailed questions about victims' intimate relations with their wives.⁴ They have even accused the plaintiffs themselves of contributing to their own victimization.⁵ This accusation seems to have become a standard tactic. One advocate for the victims of priest abuse said the church's approach puts victims of abuse in a position in which "you have to rationalize why it's not your fault."⁶

Maybe these litigation tactics are driven more by the insurance companies who are paying the legal bills than by the church itself.⁷ Still, in the public mind the church is responsible for the legal tactics used. But isn't the church just exercising its right to defend itself and its resources as any responsible corporation or government entity would? The church's litigation counsel seem to think so. They note that their legal tactics are in self-defense and are all within established ethical guidelines.⁸ But the ethical guidelines themselves suggest that the manner in which litigation advantages are pursued should take into account the peculiar "interests" of each client. Rule 1.3 of the American Bar Association's Model Rules of Professional Conduct (1999) mandates that a lawyer in a civil suit act with "reasonable diligence" and "zeal" in representing a client. At the same time, Rule 1.3 clarifies that a lawyer need not press every conceivable legal advantage. The lawyer has "professional discretion" in pursuing litigation options so as to act in the "interests of the client." It is not in a client's interests to pursue short-term legal advantages that will cause significant harm to the client's long-term interests. Aggressive litigation tactics on behalf of churches may create such long-term harm and thus may violate the ethical guidelines themselves. The reason for this lies in the unique nature of religious institutions.

Churches are different from other institutions in society, such as businesses or government entities, in the manner in which they draw support from a community. Businesses have a product or a commercial service that serves as their basis of support and income. Government entities have the power to directly tax the populace to support their operations. But the church's "product" is truth claims, and they depend on the persuasiveness and integrity of their proclamations and actions in regard to these claims to persuade people to support them.

While community goodwill is important to all institutions, it is much more so for churches. Much of the public will still buy and use razor blades, sweatshirts, radios, etc., even if some of the public are unhappy with the labor or environment or employment practices of the businesses that make these items. The government will still be able to collect taxes even if the populace is disgruntled at its policies and practices—revolutions tend to be few and far in between. But if churches act, or are perceived to act, in a manner that betrays the truths they proclaim, they are at risk of losing the only basis—claims to moral truth and integrity—on which they persuade people to support them. For churches, community goodwill is not one asset among many on their balance sheets, as it is for some businesses. Rather, in the long run at least, community goodwill is a church's only real asset.

Litigation carried out on behalf of a religious institution should reflect the heightened importance of community goodwill toward such institutions. Most people understand that institutions, even religious ones, need to defend themselves in today's litigious society. A fair, even if vigorous, defense typically incites no feelings of outrage in observers. But lawyers for religious institutions have an ethical, even sacred, obligation to avoid tactics that undermine the moral authority of the churches they represent. Thus, questions or actions intended to merely harass, intimidate, bully, and embarrass should be forsworn. Personal and sensitive information that has no reasonable relation to issues in the case should not be sought. Parents whose only error was to place their trust in an institution that claims to speak for God should not be countersued. Ideally, these types of cases would be handled through mediation, which allows for more conciliatory resolutions.

To its credit, the Catholic Church appears to have cooperated in mediation when possible.⁹ Other religious institutions would be wise to follow this alternate path in dealing with similar issues. The temptations and conflicts inherent in litigation can often lead to tactics that cast a church in a very poor light. As one judge put it, even while ruling in favor of the Catholic Church: "Even though the church was within its legal rights to vigorously defend itself, it seems to me that the church's position in this litigation is at odds with its stance as a moral force in society. . . . From where I sit, playing legal hardball doesn't seem quite right."¹⁰
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¹ See "Impact: Interview with Jeffrey Anderson and Pete Hutchins," Fox News's The O'Reilly Factor, Apr. 20, 2002; Michael Powell and Lois Romano, "Roman Catholic Church Shifts Legal Strategy: Aggressive Litigation Replaces Quiet Settlements," Washington Post, Apr. 14, 2002, p. A1.
² Ibid.
³ See Adam Liptak, "Religion and the Law: Insurance Companies Often Dictate Legal Strategies Used by Diocese," New York Times, Apr. 14, 2002 (quoting one lawyer who believed these motions were made only as an intimidation tactic).
⁴ See Nancy Phillips, "Clergy-Abuse Plaintiffs Forced to Answer Intimate Questions," Philadelphia Inquirer, May 20, 2002, p A1.
⁵ See Jennifer Levitz, "Arduous Process Begins in Suits Against Diocese," Providence Journal-Bulletin, May 15, 2002, p A1.
⁶ Levitz, p. A1.
⁷ Liptak.
⁸ Ibid. (quoting the spokesperson for one diocese as saying, "There is no inconsistency between a church of compassion and the church's right . . . to defend itself").
⁹ See Tom Mashberg, "Abuse-Case Lawyers Push to Settle With Church," Boston Herald, May 1, 2002, p 1.
¹⁰ Phillips, p A1.