Potential Legal Conflicts with Jewish Law — Halacha

Margaret E. Retter, Esq.

(This article was excerpted with permission from “Jewish Law: Recent Development, Examining Halacha, Jewish Issues and Secular Law; Confidentiality and Rabbinic Counseling — An Overview of Halachic and Legal Issues” by Rabbi Michael Broyde, Rabbi Yona Reiss and Nathan Diament, Esq. at www.jlaw.com.)

There are extensive Halachic (legal) rules, as well as civil law regulations balancing the privileged and confidential nature of such communications with the requirement upon every Jew to take all necessary measures to prevent others from suffering harm. Additionally there are factors to take into consideration from a Halachic perspective, in the event that the secular law requirements conflict with a Rabbi’s legitimate understanding of his Halachic obligations.

What should a Rabbi do when Halacha requires that he reveal information to help another, and secular law states that one may not reveal that information?

The Halachic obligation to rescue a fellow Jew from harm is a very serious one.

For example, through a confidence told to him, a Rabbi is aware of the fact that physical harm will befall another. If the Rabbi reveals the confidence, he will run the risk of suffering financial harm through a lawsuit for damages related to the breach of confidence.

In this case, many Halachic authorities rule that the danger to the life or physical well-being of another takes precedence over one’s own financial needs. Accordingly, rabbis should ensure that steps are taken to prevent the possibility of any such physical harm befalling another. Additionally, it appears unlikely that any communal backlash would result by a Rabbi fulfilling his Halachic obligation to rescue others from physical harm.

To the extent that secular law does not support this conclusion in a given jurisdiction, a Rabbi may want to consult with a lawyer to determine if there is a way to observe his Halachic obligations without running afoul of secular requirements.

For the attorney … A Caveat to the client:

–       Advise the client as to the law in the State of New York as to confidentiality; however, be careful to advise the client that not all Rabbis are familiar with the law and may not deem the communication confidential.

–       If the client consults with the attorney prior to consulting with the Rabbi, (which is not usually the case) advise the client, when speaking to the Rabbi, to inform the Rabbi that:

1 — she is consulting with the Rabbi in his role as “spiritual adviser” and should only meet with him in his office or the synagogue

2 — she should not sign any paper or document waiving her confidentiality or agreeing to do so in the future without the advice of counsel. If a document is presented to her in any language but English, she should request/demand that the document be translated to English beforehand;

3 — if the Rabbi informs her that he just wishes to help her work out her marital difficulties, she should be aware that anything she says may be use against her or published unless she makes it abundantly clear that she demands confidentiality.

—    Advise the client that if during her communication with a Rabbi, there is a third person in the room, the privilege can be lost, even if it is a parent, brother, sister, or friend. Oftentimes, the Rabbi may call someone into the room, to “help with the consultation; make sure that your client is aware that any presence of a third party may vitiate the privilege.

—    In addition, although courts have held that when a husband and wife are both seeking advice from the rabbi, the privilege is not lost, it is advisable to get the Rabbi’s confirmation that all communications made to him by both parties will be held confidential and will not be used against each other.

It is difficult to ascertain the different instances where the confidentiality issue will arise. However, as the law in this are is relatively unchartered, it would be prudent for each and every attorney who has the slightest doubt as to whether his client’s acts will be affected halachically, to consult with a Rabbi with whom he is familiar and/or who is knowledgeable in this area prior to his client seeking a rabbinical consultation.



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