Lawyers’ Toolkits Can Make Crises Worse

A story focusing on the Mormon church’s response to child sexual abuse allegations reminds us that lawyers’ instincts can sometimes make crises worse. In this case, an attorney for the church used time-honored techniques for avoiding litigation, but those techniques have left the client open to claims of covering up wrongdoing and not caring about victims.

In this case, the church attorney offered settlements, including high payouts, in exchange for confidentiality agreements and a promise from the victim to destroy recording of the meeting with the attorney. Another person present, not bound by the confidentiality agreement, eventually turned his recordings over to journalists.

The journalist also pointed to the clergy privilege, through with the church “discouraged” a clergyman from revealing an alleged confession from the perpetrator, as part of the coverup. This claim isn’t accurate, in that the clergy privilege has a long tradition in the common law and is based on important principles of encouraging people to seek help. I have noticed, for example, that many attorneys who are the most vehement against the clergy privilege are just as vehement about keeping the similar attorney-client privilege.

The charge, however, shows how modern sensibilities are tuned to treat any hint of secrecy as an institutional coverup. When attorneys add the usual tools of confidentiality agreements and nondisclosure promises in exchange for payment, they can end up with a client tried and convicted in the court of public opinion in a heartbeat. It doesn’t help our clients to avoid litigation if bad public relations damage their businesses.

For that reason, we always tell our clients that their main goal is to serve their clients, both past, present, and future. They have an obligation to help both past and current clients who have suffered abuse in the organizations.  At the same time, if theirs is a worthwhile organization, they need to stay in business to serve future clients. Balancing all of these obligations is difficult, but doing so with compassion and transparency is the only moral and effective response. Any other course may shut down the current threat of litigation, but it will only create more problems in the long run.

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