CCAR RESPONSA
New American Reform Responsa
235. Suing the Rabbi
QUESTION: A rabbi who does a considerable amount of counselling has asked whether it is necessary to purchase malpractice insurance. What, according to tradition, is the range of liability? (Walter Rosenthal, Trenton NJ)ANSWER: We are going to look at this matter with the understanding that the rabbi in question is not a licensed therapist, and so would do counselling as part of ordinary congregational responsibility and not in the special capacity of a therapist. Such cases would be akin to the responsibility of a physician which has been discussed previously (W. Jacob Contemporary American Reform Responsa #75). This entire area has been treated thoroughly in American secular legal literature; it is the general desire of the courts to remain out of this area, as it is very difficult for them to establish the parameters of training and appropriate religious conduct for so many religious groups and sects (Funston, “Made out of Whole Cloth – A Constitutional Analysis of the Clergy Malpractice Concept” California Western Law Review Vol 10 pp 507 ff; McMenamin The Jurist Vol 45 pp 275 ff etc). We are not concerned with the judicial function of the rabbi and possible errors which might take place in the exercise of that function (Shulhan Arukh Hoshen Mishpat 25 and commentaries), but rather with the general area of responsibility through counselling. The rabbi would be liable if there was gross neglect, for then he/she would be violating the Biblical statement “Do not place a stumbling block before the blind” (Lev 19.14). However, the later Talmudic development of the law of torts is rather confused; we have two concepts, garmi which includes those actions directly responsible for damage, and gerama matters in which the action is indirect (Encyclopedia Talmudit Vol 6; Ramban Dina Degarmi; Shulhan Arukh Hoshen Mishpat 386). The general rule which we may abstract from the many cases cited in the literature is as follows: If the individual in question is an expert and the advice which is followed is based upon his expertise, then he would be liable. As for example, a coin appraiser has been shown a coin and has declared it as good, but subsequently it was discovered to be bad coinage. If he has been paid for his advice, then he is liable. If he has not been paid, then he is not liable. On the other hand, if he is not an absolute expert, but the individual who came stated that he was relying on this person’s opinion alone, then he is also liable (Yad Hil Shirut.5). We can see from this that the matters which are involved are: (a) The expert status; (b) the exchange of money for the advice and evaluation; (c) the agreement between the individuals that this person is the only one to be asked for advice. In the case of counselling ordinarily done by rabbis, there is no exchange of funds. The rabbi makes no pretense to being an expert in the field. In addition to that, a rabbi would and should not permit himself/herself to be placed in a position of being the only person consulted, particularly in a difficult matter. It is our common practice to refer difficult matters onward and even in other counselling situations to provide only tentative advice. Furthermore, following the rabbinic advice is entirely voluntary. This is not like a business transaction in which the paths are much clearer, but involve a great many areas: (a) Theological issues raised; (b) to what extent was the party being counseled completely forthcoming; (c) was there an opportunity to see other parties or to gather additional information about this matter; (d) the party seeking counselling remains completely independent and may accept or reject the advice. From a traditional point of view, therefore, there is little or no ground for a suit to be brought against a rabbi as the counselling situation leaves so many areas open.January 1991
If needed, please consult Abbreviations used in CCAR Responsa.