Peanut Gallery Poll: When A Lawyer Uses The Term "potentially Actionable"...

[Analytics]

...He said nothing about divulging confidential information. Only a hostile, tendentious, and deliberately obfuscatory reading of his words would suggest otherwise.

 

No charity is involved. It's simply reading the stake president's statement.

And there is also no lack of charity involved in reading Kate Kelly's statement about her stake president's conduct being "potentially actionable."

 

 

The difference is, you isolate Kelly's "potentially actionable" statement, ignore the context, as ascribe nefarious motivation.

 

In contrast, you assume the Stake President is acting in good will, focus exclusively on the context, and ignore what he actually said, "I cannot agree to the request in your email for absolute confidentiality.” 

[smac97]

The difference is, you isolate Kelly's "potentially actionable" statement, ignore the context, as ascribe nefarious motivation.

Bull. Pretty much every attorney who has reviewed her "potentially actionable" statement in context concurs that it is a threat. I am all for reading it in context. The context makes it clear that Kate Kelly was making a threat of litigation, and not - as you have suggested - offering a cautionary warning about some other party suing her stake president.

 

In contrast, you assume the Stake President is acting in good will,

I always assume good faith at the outset. Nothing in the stake president's statement calls for your preferred assumption that he has been acting in bad faith.

focus exclusively on the context,

I have focused on the context throughout the discussion of Kate Kelly's letter.

and ignore what he actually said, "I cannot agree to the request in your email for absolute confidentiality.” 

I cannot ignore what I have expressly quoted. He explained in the preceding sentences that he might not maintain confidentiality about Kate Kelly's standing in the Church. Indeed, there is no obligation to maintain "absolute confidentiality" about such a think, either in the law or in the Church's policies.

Thanks,

-Smac

[Analytics]

I'm a little late to the game, what would KK sue for?  What would she ask for?  Monies?  Or to get her membership back?  Has someone already stated what they think she's going after? 

 

The specific context is that she sent a letter to her stake president, officially appealing her excommunication.  In the letter, she explained why she felt the excomunication proceedings were unfair.  Part of her explanation of the unfairness was that it was unacceptable to her to have the proceedings via video conferencing.  If the proceedings were conducted using this technology, the church could easily record the proceedings, and then potentially use the recording against her.  The stake president had previously told her, "I cannot agree to the request in your email for absolute confidentiality.”  Because the church could record the proceedings but couldn't guarantee absolute confidentiality, she refused to participate.

 

Burried in the letter, she said that the stake president refusing to guarantee absolute confidentiality was shameful, and "potentially actionable."  Those two words taken out of a several-page letter constitute the entire "threat" in question.

 

When looked at in context--something Smac refuses to do--it is clear that she was referring to this (quoted from wikipedia):

 

A pastor has a duty to hold in confidence any information obtained during a counseling session. A pastor who violates this trust might be on the losing end of a suit for an invasion of privacy or defamation.^[5] (http://en.wikipedia....itent_privilege)

[Mola Ram Suda Ram]

The difference is, you isolate Kelly's "potentially actionable" statement, ignore the context, as ascribe nefarious motivation.

 

In contrast, you assume the Stake President is acting in good will, focus exclusively on the context, and ignore what he actually said, "I cannot agree to the request in your email for absolute confidentiality.” 

Uh'hu.

[smac97]

The specific context is that she sent a letter to her stake president, officially appealing her excommunication.  In the letter, she explained why she felt the excomunication proceedings were unfair.  Part of her explanation of the unfairness was that it was unacceptable to her to have the proceedings via video conferencing.  If the proceedings were conducted using this technology, the church could easily record the proceedings, and then potentially use the recording against her.  The stake president had previously told her, "I cannot agree to the request in your email for absolute confidentiality.”  Because the church could record the proceedings but couldn't guarantee absolute confidentiality, she refused to participate.

 

Burried in the letter, she said that the stake president refusing to guarantee absolute confidentiality was shameful, and "potentially actionable."  Those two words taken out of a several-page letter constitute the entire "threat" in question.

 

When looked at in context--something Smac refuses to do--it is clear that she was referring to this (quoted from wikipedia):

 

A pastor has a duty to hold in confidence any information obtained during a counseling session. A pastor who violates this trust might be on the losing end of a suit for an invasion of privacy or defamation.^%5B5%5D (http://en.wikipedia....itent_privilege)

I've never resorted to legal analysis based on a Wikipedia article, but okay, I'll bite: What "information obtained during a counseling session" did the stake president threaten to divulge (and let's remember context, okay? No conjecture.).

Thanks,

-Smac

Edited July 29, 2014 by smac97

[Calm]

Remember that she published parts of the Bishop's letter to her announcing her excommunication . . . and only parts . . . whereupon she was asked by the Church (don't recall who exactly) to publish the entire letter to give full context.

 

This is what her SP was talking about:  her publishing only the parts she wants people to see, and not the parts she doesn't, the parts where she comes off as the vicious, lying bully she is.

Are you sure the timing is right? That the email was afterwards...it is all starting to blur together for me.

[Tacenda]

The specific context is that she sent a letter to her stake president, officially appealing her excommunication. In the letter, she explained why she felt the excomunication proceedings were unfair. Part of her explanation of the unfairness was that it was unacceptable to her to have the proceedings via video conferencing. If the proceedings were conducted using this technology, the church could easily record the proceedings, and then potentially use the recording against her. The stake president had previously told her, "I cannot agree to the request in your email for absolute confidentiality.” Because the church could record the proceedings but couldn't guarantee absolute confidentiality, she refused to participate.

Burried in the letter, she said that the stake president refusing to guarantee absolute confidentiality was shameful, and "potentially actionable." Those two words taken out of a several-page letter constitute the entire "threat" in question.

When looked at in context--something Smac refuses to do--it is clear that she was referring to this (quoted from wikipedia):

A pastor has a duty to hold in confidence any information obtained during a counseling session. A pastor who violates this trust might be on the losing end of a suit for an invasion of privacy or defamation.^[5] (http://en.wikipedia....itent_privilege)

Aww...thanks for explaining that !

[Bikeemikey]

The specific context is that she sent a letter to her stake president, officially appealing her excommunication. In the letter, she explained why she felt the excomunication proceedings were unfair. Part of her explanation of the unfairness was that it was unacceptable to her to have the proceedings via video conferencing. If the proceedings were conducted using this technology, the church could easily record the proceedings, and then potentially use the recording against her. The stake president had previously told her, "I cannot agree to the request in your email for absolute confidentiality.” Because the church could record the proceedings but couldn't guarantee absolute confidentiality, she refused to participate.

Burried in the letter, she said that the stake president refusing to guarantee absolute confidentiality was shameful, and "potentially actionable." Those two words taken out of a several-page letter constitute the entire "threat" in question.

When looked at in context--something Smac refuses to do--it is clear that she was referring to this (quoted from wikipedia):

A pastor has a duty to hold in confidence any information obtained during a counseling session. A pastor who violates this trust might be on the losing end of a suit for an invasion of privacy or defamation.^[5] (http://en.wikipedia....itent_privilege)

This is my take on this as well. Seems very clear but obviously others strongly disagree.

[smac97]

This is my take on this as well. Seems very clear but obviously others strongly disagree.

I don't follow. What is your "take?" What "information obtained during a counseling session" did the stake president threaten to divulge?

Thanks,

-Smac

[Bernard Gui]

Were Ms Kelly to follow through with her threat to sue her stake president, she could be placing her membership in even more jeopardy.

John Taylor Journal of Discourses 20:105-6

"And does not the Church today possess the same officers as it did anciently, and are they not set apart by the revelation of God, and ordained by the holy Priesthood to occupy this position? Are these men not competent to judge of the comparatively trivial things associated with this life? And yet you will take your brother before [p. 106a]ungodly men to be judged of them. I tell you the hand of God will follow you if you do it. And we do not want any such thing done by any calling themselves Latter-day Saints; and Israel cannot do such things with the approbation of God, or the councils of his Church. And I will give you fair warning, and I call upon Brother Peery here, who is President of this Stake, to carry it out, that when he finds any Latter-day Saint under his jurisdiction going to law with his brother before the ungodly, 1 Cor. 6:1, to bring him up and deal with him for his fellowship. This is a correct principle before God; and as Saints of God we should be governed by his laws, and not by the laws of the world. But these laws are made and provided for our protection, and when it is proper and right we can make use of them in common with other citizens. But we have laws among ourselves, and all honorable men among us will submit to the decisions of our Church authorities, and those who are not honorable we do not want, and we will cut them off."

[Bikeemikey]

I don't follow. What is your "take?" What "information obtained during a counseling session" did the stake president threaten to divulge?

Thanks,

-Smac

He didn't. Kate Kelly was incorrect in her observation that there had been a "potential" breach of ecclesiastical trust. It does not follow that she threatened to sue.

My take is that you have refused to appropriately ascribe context to the "potentially actionable" statement. The discussion has not been about whether Kate Kelly's "potentially actionable" claim had merit (it didn't as there was no potentially actionable violation on the part of her church leaders) rather it was about whether Kate Kelly threatened to sue (which I believe context clearly shows she did not).

[Analytics]

I've never resorted to legal analysis based on a Wikipedia article, but okay, I'll bite: What "information obtained during a counseling session" did the stake president threaten to divulge (and let's remember context, okay? No conjecture.).

Thanks,

-Smac

 

She didn't specify, obviously.

 

It reminds me of a letter a letter I received today from a neighbor.

 

It said,

 

Dear Mr. Analytics,

 

The other day when we saw each other walking our respective dogs, I noticed you didn't have any plastic bags with you.  I offered to give you one of my bags so that if the need were to arise, you'd have one.  You said, "No way, that's gross!"  You have the responsibility to clean up after your dog.  Not doing so is shameful, and potentially actionable.

 

Sincerely,

 

Hypothetical Neighbor, Esq.

 

Naturally, I'm quite enraged about him threatening to sue me like this. I didn't want to pay for an attorney, so I responded thusly:

 

Dear Hypothetical Neighbor,

 

I recently learned on the Internet that when attorneys use the phrase "potentially actionable" it is a threat.  I'm confused about the specifics of this threat and hope you can clarify.  Which defecation, specifically, are you threatening to sue me for?

 

Sincerely,

 

Analytics

[smac97]

He didn't.

I know he didn't. But then why are we talking about the Priest-Penitent privilege if he wasn't threatening to breach that privilege? Why are you not addressing this with Analytics, who is the one injecting the privilege into this discussion?

 

Kate Kelly was incorrect in her observation that there had been a "potential" breach of ecclesiastical trust. It does not follow that she threatened to sue.

Okay. So if she was not threatening to sue, what did she mean by "potentially actionable?" What type "action" do you think she had in mind? Who would take this "action?" Against whom would this "action" be taken?

 

My take is that you have refused to appropriately ascribe context to the "potentially actionable" statement.

Oh, the irony. I have done nothing but focus on the context. The context includes one lawyer writing to another. It includes a lawyer using a phrase with a very specific meaning as referencing litigation (it's even in the dictionary, for pete's sake). Every attorney on this board who has weighed in on this issue concurs with the assessment that "potentially actionable" references a threat to sue. You previously conceded that Kate Kelly's action was a threat to sue.

I submit that the passel of commenting attorneys on this board and the dictionary establish beyond reasonable dispute what "potentially actionable" means when used by Kate Kelly, a lawyer, in communications directed to her stake president, another lawyer. That is what the context calls for. I am all about context. I love it. It helps me sleep at night. I submit that the only people who are refusing to consider context are the people who are ignoring the dictionary, ignoring the collective input from attorneys with many decades of cumulative experience between them, and most of all ignoring the letter itself.

 

The discussion has not been about whether Kate Kelly's "potentially actionable" claim had merit (it didn't as there was no potentially actionable violation on the part of her church leaders) rather it was about whether Kate Kelly threatened to sue (which I believe context clearly shows she did not).

What are you saying? How do you define "potentially actionable" as used by Kate Kelly. What type "action" do you think she had in mind? Who would take this "action?" Against whom would this "action" be taken?

I'm really trying to understand you here. I hope you see that.

Thanks,

-Smac

Edited July 31, 2014 by smac97

[smac97]

What "information obtained during a counseling session" did the stake president threaten to divulge (and let's remember context, okay? No conjecture.).

She didn't specify, obviously.

Kate Kelly quotes her stake president as saying this:

Given that you, President Wheatley, had already said to me in an email on May 6: “because you have carried your campaign for ordination far beyond the boundaries of our Stake, and have previously told the media and the public that you are a member in good standing, it may be necessary at some point in the future to correct the public record regarding your standing in the Church. For these reasons, I cannot agree to the request in your email for absolute confidentiality.” (emphasis added) Your statement denying me confidentiality was shameful, and potentially actionable.

She specified a statement by her stake president as being "potentially actionable." She put the statement in bold. She then said: "Your statement denying me confidentiality was . . . potentially actionable." That seems fairly specific.

However, notwithstanding Kate Kelly saying that the stake president's bolded statement "was ... potentially actionable" (note the past tense), are you suggesting that Kate Kelly intended to refer to a future breach of the privilege by the stake president?

Thanks,

-Smac

[Analytics]

Kate Kelly quotes her stake president as saying this:

Given that you, President Wheatley, had already said to me in an email on May 6: “because you have carried your campaign for ordination far beyond the boundaries of our Stake, and have previously told the media and the public that you are a member in good standing, it may be necessary at some point in the future to correct the public record regarding your standing in the Church. For these reasons, I cannot agree to the request in your email for absolute confidentiality.” (emphasis added) Your statement denying me confidentiality was shameful, and potentially actionable.

She specified a statement by her stake president as being "potentially actionable." She put the statement in bold. She then said: "Your statement denying me confidentiality was . . . potentially actionable." That seems fairly specific.

However, notwithstanding Kate Kelly saying that the stake president's bolded statement "was ... potentially actionable" (note the past tense), are you suggesting that Kate Kelly intended to refer to a future breach of the privilege by the stake president?

Thanks,

-Smac

 

 

She said it was potentially actionable.  "Potentially" means "possibly but not yet actually."  What would make something that is possibly actionable become actually actionable?  A future breach?  Damages materializing?  Something else?  I don't know.

 

I'm not claiming to know the specific details of what her legal arguments would be in the hypothetical universe in which she did in fact bring this to court, much less whether she should prevail.  All I am saying is this:

 

1- Pastors have a legal responsibility to gurantee some level of confidentiality

2- The stake president didn't commit to guranteeing any level of confidentiality

 

From this seat in the peanut gallary, it's clear that the "potentially actionable" phrase was referring to that tension.

 

Beyond that, I'm not privy to any details. 

 

For the sake of clarity, I readily grant that the stake president's point may have been along the order of, "As with all counseling sessions, of course I gurantee that the details of all of our discussions and proceedings will remain strictly confidential.  However, you should be aware that whether or not you are a member of the church in good standing isn't confidential, so if the public is ever confused about that particular point, the church retains its right to clarify."

 

Of course there is no way to know, but if he would have written that instead, Kelly's letter wouldn't include the words, "potentially actionable."

[smac97]

She said it was potentially actionable.  "Potentially" means "possibly but not yet actually."  What would make something that is possibly actionable become actually actionable?  A future breach?  Damages materializing?  Something else?  I don't know.

I think the "potentially" in "potentially actionable" is more of a hedge by the attorney making the threat. An attorney is not the final word on whether a particular claim is "actionable," and so would usually hedge a threatened claim by saying that the purported misconduct is "potentially" actionable.

But "I don't know" seems to cover what I was looking for.

 

I'm not claiming to know the specific details of what her legal arguments would be in the hypothetical universe in which she did in fact bring this to court, much less whether she should prevail.  All I am saying is this:

 

1- Pastors have a legal responsibility to gurantee some level of confidentiality

2- The stake president didn't commit to guranteeing any level of confidentiality

 

From this seat in the peanut gallary, it's clear that the "potentially actionable" phrase was referring to that tension.

I disagree that the stake president refused to guaranty confidentiality. He was referring to prospective communications to third parties regarding her status in the Church. That is the context of his statement, so we should not disregard that and assume he was referring to any and all communications he has had with her.

 

Beyond that, I'm not privy to any details.

You're privy to Kate Kelly's quotation of her stake president which immediately precedes her claim that his "statement . . . was . . . potentially actionable."

 

For the sake of clarity, I readily grant that the stake president's point may have been along the order of, "As with all counseling sessions, of course I gurantee that the details of all of our discussions and proceedings will remain strictly confidential.  However, you should be aware that whether or not you are a member of the church in good standing isn't confidential, so if the public is ever confused about that particular point, the church retains its right to clarify."

 

Of course there is no way to know, but if he would have written that instead, Kelly's letter wouldn't include the words, "potentially actionable."

I disagree I think there is a way to know. We read Kate Kelly's words: "Given that you, President Wheatley, had already said to me in an email on May 6: 'because you have carried your campaign for ordination far beyond the boundaries of our Stake, and have previously told the media and the public that you are a member in good standing, it may be necessary at some point in the future to correct the public record regarding your standing in the Church. For these reasons, I cannot agree to the request in your email for absolute confidentiality.' (emphasis added) Your statement denying me confidentiality was shameful, and potentially actionable."

Neither Kate Kelly nor the stake president was referring to "the details of all of our discussions and proceedings." The stake president was talking specifically about her statements to the media that she is "a member in good standing," and that "it may be necessary at some point in the future to correct the public record regarding (her) standing in the Church." That is the only think the stake president referenced: correcting the public record regarding her standing in the Church. Your speculation which expands beyond that has no basis, and disregards not only the context of the communications between Kate Kelly and her stake president, but it even disregards the actual text.

Thanks,

-Smac

Edited July 31, 2014 by smac97

[Bikeemikey]

Okay. So if she was not threatening to sue, what did she mean by "potentially actionable?" What type "action" do you think she had in mind? Who would take this "action?" Against whom would this "action" be taken?

Thanks,

-Smac

This is the crux of the disagreement we have in the reading of Kate Kelly's response.

Pointing out that something could potentially warrant or justify legal action is not the same thing as suggesting that one will engage or even threaten to engage in legal action.

You are of the opinion that specifically highlighting a perceived breach of ecclesiastical conduct and stating that such a breach is "potentially actionable" is a threat, specifically a threat to sue.

I see highlighting such action as illustrative, in this context. Could it also be called a threat, sure, but in this instance a threat to use "appropriate" ecclesiastically proscribed methods to dispute the excommunication. There is no reasonable way that I am able to read the multiple page letter and finish with the idea that the writer is planning or threatening to sue the church. Though it is absolutely transparent that the writer is planning to dispute the excommunication and they feel that potentially legally questionable actions by their clergy should be considered during the course of the excommunication being disputed.

Her letter was not about public civil or legal action. It was about religious action within the church process.

It was not written as a lawyer to another lawyer, though both the writer and recipient are lawyers, it was written by a church member (ex) to a ecclesiastical leader.

It was written in support of an action fully authorized and inline with the church policies and practices, not in support of legal action.

There is nothing about this document that is legal in nature or intent, though it is very lawyerly, as it was written by a lawyer.

That is the bottom line for me.

Also, as a side note, I do not think that there is actually "potentially actionable" behavior on the part of the Stake President (though this is obviously from a distance), just as I don't think most of her other claims have merit. She is however fully entitled to express her position and should be able to point out behavior that she feels ought to be carefully considered during the excommunication review, which she is requesting, with out people blowing her clear intent totally out of proportion.

[Kenngo1969]

What a pain in the...

What happens if after a year you stop looking and they file?

I believe they have a specified time period in which they must file after serving, or forfeit their right to do so.  If I'm remembering correctly from Civ Pro, one of my favorite subjects from almost 15 years ago.  If not, they'd be running up against a statute of limitations sooner or later.

Edited July 31, 2014 by Kenngo1969

[wenglund]

While I think that the phrase can reasonably be interpreted in a variety of ways, and is thus open to divergent interpretations and not worthy of dogmatic argumentation,, I personally consider it the legal equivalent of saber rattling and muscle flexing. To each their own.

 

Thanks, -Wade Englund-

[Ahab]

Without my understanding of legal terminology I'd say that if someone said something was "potentially actionable" they'd only be saying that it had the potential to be something that was legally actionable, with the action usually referring to some kind of law suit.

Kinda like if someone said something was potentially dangerous they'd only be saying something had the potential to be dangerous, with the danger usually referring to a potential toward some kind of physical harm.

So I see Kate's comment as basically a warning, rather than a threat or a statement of intent to pursue legal action. She may, or may not, and pretty much all she is saying is that she sees the potential to file a lawsuit.

[Analytics]

I think the "potentially" in "potentially actionable" is more of a hedge by the attorney making the threat. An attorney is not the final word on whether a particular claim is "actionable," and so would usually hedge a threatened claim by saying that the purported misconduct is "potentially" actionable.

But "I don't know" seems to cover what I was looking for.

 

I disagree that the stake president refused to guaranty confidentiality. He was referring to prospective communications to third parties regarding her status in the Church. That is the context of his statement, so we should not disregard that and assume he was referring to any and all communications he has had with her.

 

You're privy to Kate Kelly's quotation of her stake president which immediately precedes her claim that his "statement . . . was . . . potentially actionable."

 

I disagree I think there is a way to know. We read Kate Kelly's words: "Given that you, President Wheatley, had already said to me in an email on May 6: 'because you have carried your campaign for ordination far beyond the boundaries of our Stake, and have previously told the media and the public that you are a member in good standing, it may be necessary at some point in the future to correct the public record regarding your standing in the Church. For these reasons, I cannot agree to the request in your email for absolute confidentiality.' (emphasis added) Your statement denying me confidentiality was shameful, and potentially actionable."

Neither Kate Kelly nor the stake president was referring to "the details of all of our discussions and proceedings." The stake president was talking specifically about her statements to the media that she is "a member in good standing," and that "it may be necessary at some point in the future to correct the public record regarding (her) standing in the Church." That is the only think the stake president referenced: correcting the public record regarding her standing in the Church. Your speculation which expands beyond that has no basis, and disregards not only the context of the communications between Kate Kelly and her stake president, but it even disregards the actual text.

Thanks,

-Smac

 

 

Let's take a step back and summarize where we are.

 

I'm assuming that when she said potentially actionable, that's precisely what she meant.  You disagree with that. 

 

I state that it is clear that the alleged threat is talking about what was bolded in the preceding paragraph, and how it applies to a pastor's responsibility to maintain confidentiality.  You disagree with that.

 

I don't think we have enough detail to know the specific legal argument Kelly would make if she were inclined to prove whether or not it is actionable in court.  You agree that we don't know what her specific argument would be, but you are sure that whatever it is, it must be baseless.

 

I think that if the stake president's point is what you claim it is, and if he would have expressed that point more clearly and without using the phrase " I cannot agree to the request in your email for absolute confidentiality", there is no way of knowing whether Kelly would have called it "potentially actionable."  You disagree and think there is a way to know how she would have reacted in an alternate reality.

 

Let me know if I misunderstand anything, because I'm losing interest in this conversation.

[USU78]

I believe they have a specified time period in which they must file after serving, or forfeit their right to do so.  If I'm remembering incorrectly from Civ Pro, one of my favorite subjects from almost 15 years ago.  If not, they'd be running up against a statute of limitations sooner or later.

 

Rule 3(a), URCP:  "(a) How commenced. A civil action is commenced (1) by filing a complaint with the court, or (2) by service of a summons together with a copy of the complaint in accordance with Rule 4. If the action is commenced by the service of a summons and a copy of the complaint, then the complaint, the summons and proof of service, must be filed within ten days of such service. If, in a case commenced under paragraph (a)(2) of this rule, the complaint, summons and proof of service are not filed within ten days of service, the action commenced shall be deemed dismissed and the court shall have no further jurisdiction thereof."

 

So . . . check on the 13th day after service.  If unfiled, ignore it.  If filed, check your calendar and make sure you counted right.

[USU78]

While I think that the phrase can reasonably be interpreted in a variety of ways, and is thus open to divergent interpretations and not worthy of dogmatic argumentation,, I personally consider it the legal equivalent of saber rattling and muscle flexing. To each their own.

 

Thanks, -Wade Englund-

 

Both of which are threats, and potentially actionable . . .

[smac97]

Let me know if I misunderstand anything, because I'm losing interest in this conversation.

We are not on the same page, but I too am losing interest in this conversation. Let us agree to disagree and part as friends (or as amiable adversaries, or whatever).

Thanks,

-Smac

[Kenngo1969]

This whole thread reminds me of a conversation between the entertainingly-looney Col. Flagg and sniveling Maj. Frank Burns after Captains Pierce and MacIntyre begin surgery on a CID man without another CID man present (a required protocol in case the patient said something classified while under anesthesia).

 

Burns: "I warned them!  I warned them not to do this!"

Flagg: "Why didn't you order them not to?"

Burns (Defensively): "Well, a warning is sort of ... orderish."

 

Just sayin'!