Saturday, March 13, 2004
Last weekend, we here at the University of St. Thomas sponsored a symposium on “Understanding the Intersection of Business and Legal Ethics,” in which, among many others, our co-blogger Stephen Bainbridge made an important contribution and all presentations of which will be published in the University of St. Thomas Law Review.
During the course of that event, in which many of the speakers addressed the various scandals arising in the business world – the Savings & Loan crisis of several years ago, Enron, Martha Stewart, etc. – in which lawyers failed in their role as moral counselor, I could not help but be disturbed by the painful parallel with the recent scandals of the American Catholic Church, Inc. Of course, the Catholic Church is not, or at least should not be, a business enterprise. And indeed a large part of the priest abuse problem was that the Church often conceived of itself as such. As Ralph McInerny says, some “bishops acted like CEOs rather than shepherds.”
Given the nature of the UST symposium, which looked not only to business ethics but also to the ethics of lawyers advising businesses, my more immediate focus was on the behavior of those lawyers retained by the Church either as general counsel or to represent it with respect to lawsuits alleging sexual abuse of minors by priests. Given the nature of this weblog on Catholic Social Thought and the law, the proper role of lawyers as Catholics, that is, people of faith who are in the legal profession, in proper counseling is directly pertinent.
The report of the National Review Board appointed by the bishops issued just a couple of weeks ago. It includes a section titled “Reliance on Attorneys,” a title that is meant to indicate not something salutary but rather delineate yet another of the multiple errors made by the bishops. In other words, when the bishops sought the advice of members of our profession, they went astray. Ouch.
Consider the details of the grievous errors outlined in the National Review Board report, which, while levied against the bishops in the first instance, encompass their lawyers as well: Attorneys used “tactics [that] often were inappropriate for the Church, and which tended to compound the effects of the abuse that already had been inflicted.” These tactics included defenses that “could be construed as blaming the victim,” arguing that the Church had no responsibility for priests by claiming they were “independent contractors,” and “in general adopting an overly adversarial approach.”
Moreover, the report says that “certain lawyers recommended, and certain bishops insisted, that the victims sign confidentiality agreements, which stifled their ability to discuss their experiences openly and thwarted awareness by the laity of the problem.” In addition, lawyers counseled Church leaders not to meet with or apologize to victims, even when the abuse was clearly substantiated. Not only does the report correctly say that this approach undermined the primary pastoral mission of the bishops, but it suggests that it ultimately led to greater legal liability as many victims said they would not have filed suit had someone heard their complaints and apologized.
The report says this problem was caused by “disastrous pastoral decisions” in selecting lawyers based on “friendship [with bishops] and a misguided perception of the lawyers’ loyalty to the Church.” As a consequence, the lawyers chosen “failed to adapt their tactics to account for the unique role and responsibilities of the Church.”
To be sure, as another part of that report states, “[t]he first role of a bishop or any Church leader must be to act as a pastor to the Catholic faithful.” Thus, the bishops have primary responsibility here, and cannot avoid that responsibility by alluding to the advice of counsel. Or as the report puts it, “the Church should not hide behind its lawyers.” That much is a given.
Nonetheless, is it not sad that counsel from their lawyers is cited as a problem, rather than as one of the means toward a solution? Is it not a scandal to us in the legal profession that, rather than assisting Church leaders in finding a morally superior means of responding to the sex abuse problem, Church lawyers are said to have exacerbated it? Now I am sure there were exceptions to this sorry pattern and perhaps we may hear at some point encouraging stories about individual lawyers who were part of the solution rather than the problem. And perhaps many of these lawyers did in fact provide moral counseling but because of confidentiality expectations have not been able to so reveal it publicly (although the bishops presumably waived any such confidentiality when cooperating with the investigation by the national review board). Nonetheless, it cannot be gainsaid that, on the whole, the involvement of lawyers made this serious problem a greater disaster.
What can we learn from this about our role as lawyers? To begin with, the growing revival in professional responsibility scholarship and education of attention to the foundational role of lawyers as moral as well as legal counselors needs to be heard and emphasized just as much among the Church’s lawyers as the rest of profession. One would have thought that the Church’s own legal representatives, with the full encouragement of their clients the bishops, would have been at the forefront of the movement to enhance ethical lawyering and moral counseling. Instead, the National Review Board report suggests they were among the last to get the message. How can we help ensure that this never happens again? As the bishops now seek to restore confidence in the Church among the faithful, how can we restore confidence in lawyers of faith as committed to partnership with Church leaders in providing legal advice that serves a greater moral purpose?