When You Speak to Your Rabbi, is it a Confidential Conversation or Will Everyone Find Out?
Margaret E. Retter, Esq.
1. When you call for “information” about a prospective boy or girl, he may call the other side and tell them YOU approached him for information;
2. When you call for “information” about a prospective boy or girl, he may call other colleagues and shadchanim and tell them about your conversation;
3. When you call to discuss your own marital woes, and “signs of trouble” in your marriage he may use this information to tell your spouse or others, whom he thinks need to know, or use it in court against you.
4. When you call to discuss your divorce “strategy” and issues of custody, he may use this information against you in court, or tell the school’s administration, whichb may affect your own case and/or your children’s custody;
5. When you call to discuss your Beis Din and a Get situation, he may use the information against you in possibly discussing the matter with other Rabbanim, who may even be on the same Beis Din and/ or attorneys against you.
(The above are not hypothetical cases. They actually happened.)
Regardless of any of the above reasons that you are speaking to your Rav, you may be under the impression that anything you say to him is confidential, and privileged; you may be under the impression that he cannot disclose, reveal or tell anyone whatever you told him.
YOU ARE WRONG!
Although there is a New York State Law which addresses a “Rabbi Penitent -Privilege, the law is quite specific. This is the law as it is on the books:
“New York State Rules Of Evidence Provides:
Confidential communications to clergy privileged: (CPLR sec. 4505)
“Unless the person confessing or confiding waives the privilege, a clergyman, or other minister of any religion…shall not be allowed (to) disclose a confession or confidence made to him in his professional character as spiritual advisor.” (Underline added.)
In this context, “Clergy”=Rabbi, Rebbe, Rav; “Penitent”=congregant, male or female;
“Privilege”=Right of Confidentiality; “waives”=gives up (the right);
So, it would seem from reading the law, that whenever you go to your Rav, Rebbe, or Rabbi, and ask him information about a potential Shidduch, or talk to him about whatever troubles you, or choose to “pour out your heart” to him for whatever reason, that the information goes no further, and that his lips “are sealed”.
You Are Wrong!
Even though the reason that this law was enacted was so that people would feel free to talk to their “clergy”, it does not apply in many circumstances, and you need to be aware. You need to know how this works so that you are not shocked when what you said to your Rav is revealed, whether to someone else or in court, and that you know how to be protected by this law, when speaking to him or walking into his office/study.
1. In New York, the privilege belongs to the congregant, to you, not to the Rabbi…so unless you give up the right to confidentiality, the Rabbi cannot. It is not his privilege, it is your privilege.
2. Nature of what you are saying…Important! The operative words here are “confession…confidence made to him in his professional character as spiritual advisor”. What does this mean? And how is this interpreted? Did you go to the Rav for Spiritual Reasons e.g. advice on ruchniyus, aid, and comfort? Did you go to him in his “professional” character” to give you advice, for example, to make the Shidduch or not, counseling advice on marital issues with a view towards reconciling or not?
Where did this conversation take place? In his study? Office? Or at a wedding, after shul, or on the street?
3. Was anyone else present when you were speaking to your Rav, such as a third party in the room? For example, did your mother, father, sister or friend go with you to speak to the Rav? If any third party was present, there is NO privilege confidentiality!
It is our opinion (not legal advice for which you must see your legal counsel) that if and when you do go to your Rav, Rabbi, or Rebbe, you need to do the following before disclosing a privileged conversation.
Inform the Rabbi, Rav, Rebbe that:
1. you want to meet with him in his office or synagogue, (shul):
2. you want to meet with him in his role as “your spiritual advisor”, meaning to discuss matters of Halacha and/or ruchniyus, help, or nechama; and
3. you want anything and everything that you tell him to be kept confidential.
4. Do not bring a third person into the room. If you wish to bring a third person into the room, you are advised that the privilege of confidentiality is lost, even if it is a sister or parent; Often times, the Rav may call someone into the room “to help with the consultation”. If the Rav brings in a secretary, or Gabbai, or his own wife, make sure you tell him that whatever you say is Confidential. (contact a lawyer to make sure that a Gabbai or secretary or Rabbi’s wife is not a “third party”).
5. In cases where BOTH the husband and wife are going to the same Rav for advice as to issues or problems with their marriage and to have a consultation, reconciliation, or trying to restore their marriage, generally the privilege is NOT lost, but 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.
* For a more detailed discussion of this issue, see Articles of Interest, “Privilege and Confidentiality”.
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