Legal Memorandum: A Claim of Clergy Malpractice in VA

Issue: Under Virginia law, what are the elements for a claim of clergy malpractice?

“A claim for clergy malpractice generally pertains to negligent ‘pastoral counseling and is based on the alleged wrongful conduct or advice of the clergy member in causing the situation presented for counseling to deteriorate further.'”  Constance Frisby Fain, Minimizing Liability for Church-Related Counseling Services: Clergy Malpractice and First Amendment Religion Clauses, 44 Akron l. Rev. 221, 229 (2011) (quoting Louis A. Frumer and Melvin I. Friedman, Religious Organizations and Institutions, Personal Injury–Actions, Defenses, Damages, § 117.04 [2][c] (MB) (2010)).  According to Bender’s, “[c]lergy malpractice generally pertains ‘to the area of [negligent] pastoral counseling.  The basis of such a claim is the alleged wrongful conduct or advice of the member of the clergy in causing the situation presented for counseling to further deteriorate.’  24-111 Personal Injury–Actions, Defenses, Damages § 111.06 (quoting Bender’s 24-117 Personal Injury–Actions, Defenses, Damages 117.syn).  However, one must determine whether the defendant is “clergy.”  Id. (citing Paul B. Butler, Churches and Clerics on Trial Strategies for the Litigant, Tort and Religion 4 (ABA 1990)).  “The word ‘clergy’ relates to: ‘an individual who, as a result of ordination, licensing procedures, or some other form of entitlement which is recognized and practiced by the particular religious group with which that person is affiliated, . . . provides counseling, pastoral care, and guidance to group members or those seeking his or her guidance.'”  Id. (ellipses in original). 

Clergy may enjoy immunity from the imposition of a civil duty with reference to religious functions or spiritual ministry matters.  Id. (citation omitted).  “With respect to […]