do Not Participate in Any Type of Court Case?

[smac97]

19 minutes ago, HappyJackWagon said:

Really?  You don't think the members benefit from this?  I can think of all sorts of problems that could arise when local leaders are called upon to testify about things they learn in their capacity as leaders.  There are some very substantive reasons why there are various "privileges" against compulsory testimony.  Lawyers, doctors, clergy, etc. all have special access to the details of the lives of the individual in their care.  That special access is not intended to benefit the legal opponent of the individual.

As I noted in another post I believe members and leaders may also receive benefit when their interests match the church's, but my point is that the individual leader or member is not the primary concern of the hotline. It is about protecting the church 

And my point is that this is a patently untrue statement.

19 minutes ago, HappyJackWagon said:

"Church liability" can certainly be a big concern, and there is nothing wrong with the Church's attorneys being attentive to that.  To the contrary, that makes a lot of sense.

I agree that church should be concerned about liability. I haven't said otherwise.

But you are saying that the Church's attorneys and the Church's hotline are concerned solely about liability.  That is flagrantly incorrect.

19 minutes ago, HappyJackWagon said:

And it makes perfect sense for the church's attorneys to be concerned primarily about their client's liability. The only thing I'm really disagreeing with is the claims that the hotline is there for the individual. I don't believe it is. The individual is not their client, the church is.

Nobody has claimed "the hotline is there for the individual."  Rather, I am disagreeing with these statements:

• "I disagree that the legal advice is for the benefit of anyone other than the church and its interests."
• "I've also called the hotline numerous times as bishop and was quite disappointed in the responses I received. It was always about avoiding church liability."
• "The hotline is all about protecting church assets. It's not about protecting members or lay leaders."

These are not correct statements.

19 minutes ago, HappyJackWagon said:

I never had a situation where I was called upon to testify in a legal proceeding.  Did you ever face that circumstance?

I never did. Like a good soldier, I followed the handbook/hotline and avoided it. In my opinion I did so to the detriment of the members I was trying to help.

Your job as bishop is to provide pastoral care.  Your job was not to give them a leg up in a lawsuit.

19 minutes ago, HappyJackWagon said:

This is distressing to hear.  And again, quite different from mine.

A bishop as a percipient witness to a slip-and-fall does not seem problematic.  You weren't privy to any sensitive or personal data.  Your testimony would not have been in your capacity as a bystanding witness, not as "a bishop."

I agree. IIRC They said something about a bishop is Always a representative of the church so his testimony would be taken as such. I don't know if that's correct or not.

I doubt they said "a bishop is always a representative of the church."  Context matters a lot here.

Moreover, the letter is not a categorical prohibition against bishops testifying.  Instead, it instructs bishops to confer with the Church's attorneys if and when they are called upon to participate in a lawsuit involving a member of their ward.  

Thanks,

-Smac

[smac97]

54 minutes ago, HappyJackWagon said:

You've got it wrong.  The bishop and the Church are the attorney's "client."  The bishop is seeking legal advice in his capacity as an agent/representative of the Church.

Would it be fair to say that the Bishop (representative of the church) is an extension of the church and is therefore the client, BUT HappyJackWagon as an individual is not the attorney's client?

Yes.  The attorney-client relationship is not a 24-7, soup-to-nuts sort of relationship.  When I am retained in a legal dispute, the scope of my representation is limited to A) specific individuals (I might represent an LLC but not the individual members of that LLC), and B) specific legal issues (I am representing a client in his boundary line dispute with his neighbor, but not in his child custody dispute with his ex).

Quote

I propose that you do a little reading about agency law.  The Church is the "principal," and the bishops are the "agents."

Well, I'm not going to be reading up about agency law so maybe you could explain in plain terms. I still maintain that the "representative" as an office may be the attorney's client by extension, but that doesn't mean the individual person in that office is the client.

A bishop functioning in his capacity as bishop is an agent/representative of the Church, and as such has an attorney-client relationship with the Church's attorneys.

A bishop not functioning in his capacity as a bishop is not represented by the Church's attorneys.

Parsing this out might become complex.  It might involve ambiguities and judgment calls.  All the more reason for the bishop to contact the Church's attorneys'

Quote

They may in fact have different interests. If I wanted them to represent JackWagon's interests, wouldn't I have to hire them?

Yes.  But your "interests" would need to be truly yours.  

Quote

Your error is to differentiate "the Church" from "the bishop" relative to the attorney-client relationship.  The attorney represents the Church.  The bishop is an agent/representative of the Church, and hence is also covered by the attorney-client relationship with the Church's attorneys.

The individual who serves as bishop is more than just his role as agent of the church. The hotline/attorneys, from what I can tell are only interested in his role as agent, not him personally. So again, the church is the client, not the individual who serves as bishop.

This is not correct.  The individual who serves as bishop and gets involved in a legal dispute because of his calling as a bishop is wearing his "I'm-an-agent/representative-of-the-Church" hat (which implicates the Church, and hence creates an attorney-client relationship as to the legal issues at hand), rather than his "My-name-is-HappyJackWagon-and-my-calling-as-bishop-has-nothing-to-do-with-my-involvement-in-this-lawsuit" hat (which would likely not implicate the Church, and hence would not give rise to an agency issue, an attorney-client relationship, etc.

Quote

And since the bishop, while functioning in that capacity, is an agent/representative of the Church, the bishop is also a "client."  But that does not mean the Church's attorneys are indifferent or hostile to anything except the interests of "the Church."  That's simply not so.

And what about when the individual bishop isn't functioning as a representative of the church?

That can be a complex question.  Sometimes the boundary between Functioning-as-a-Bishop and Functioning-Purely-in-an-Individual-Capacity can be fuzzy.

Quote

As a witness to a slip and fall, was there something unique about that experience that made me a representative that would prohibit me from being a witness? Makes no sense to me.

I agree.  That seems strange.

Quote

I don't really know if the attorneys are indifferent or hostile to anything except the interests of the church. They're human beings so I suspect there is some level of caring. But they act for the benefit of their client, not to make themselves feel good in helping a non-client.

That's not so.  They are very much interested in the welfare of the members of the Church.  But their job focuses on lawyering, and sometimes the legal side of things doesn't perfectly jibe with the subjective welfare needs of the individual.

Thanks,

-Smac

Edited August 14, 2020 by smac97

[HappyJackWagon]

24 minutes ago, smac97 said:

Yes.  The attorney-client relationship is not a 24-7, soup-to-nuts sort of relationship.  When I am retained in a legal dispute, the scope of my representation is limited to A) specific individuals (I might represent an LLC but not the individual members of that LLC), and B) specific legal issues (I am representing a client in his boundary line dispute with his neighbor, but not in his child custody dispute with his ex).

A bishop functioning in his capacity as bishop is an agent/representative of the Church, and as such has an attorney-client relationship with the Church's attorneys.

A bishop not functioning in his capacity as a bishop is not represented by the Church's attorneys.

Parsing this out might become complex.  It might involve ambiguities and judgment calls.  All the more reason for the bishop to contact the Church's attorneys'

Yes.  But your "interests" would need to be truly yours.  

This is not correct.  The individual who serves as bishop and gets involved in a legal dispute because of his calling as a bishop is wearing his "I'm-an-agent/representative-of-the-Church" hat (which implicates the Church, and hence creates an attorney-client relationship as to the legal issues at hand), rather than his "My-name-is-HappyJackWagon-and-my-calling-as-bishop-has-nothing-to-do-with-my-involvement-in-this-lawsuit" hat (which would likely not implicate the Church, and hence would not give rise to an agency issue, an attorney-client relationship, etc.

That can be a complex question.  Sometimes the boundary between Functioning-as-a-Bishop and Functioning-Purely-in-an-Individual-Capacity can be fuzzy.

I agree.  That seems strange.

That's not so.  They are very much interested in the welfare of the members of the Church.  But their job focuses on lawyering, and sometimes the legal side of things doesn't perfectly jibe with the subjective welfare needs of the individual.

Thanks,

-Smac

As an attorney, is your  responsibility to the needs of your client or do you get involved beyond their needs to help others even if the others interests are in competition with your client's?

[smac97]

1 hour ago, HappyJackWagon said:

As an attorney, is your responsibility to the needs of your client

Yes.  I owe a fiduciary duty to my client.  However, I am also obligated to follow the law, the rules of professional conduct, my personal moral code, and so on.

Quote

or do you get involved beyond their needs to help others even if the others interests are in competition with your client's?

I can't breach my fiduciary duty.  

However, there have been times when I have helped the opposing party.  Some years ago I was working on an eviction in Salt Lake.  On the morning of an eviction (as in the police actually showing up at the door to escort the tenant out and change the locks) I got a call from a neighbor of the tenant who told me that the tenant was elderly, was more or less infirm (homebound) and on oxygen, did not have family, had no money to speak of, and that proceeding with the suit would mean she would literally be "out on the street."  I did not know any of this (the tenant had not responded to any part of the lawsuit, so we had no way of knowing).  I called the police that were enforcing the lockout and told them to stand down.  I called my client and explained I was stopping the eviction process, as I was concerned about the welfare of the tenant, and also about the "reputational harm" that could accrue to my client.  Based on the neighbor's remarks (he said the tenant was in his ward), I located the bishop of the ward (I used the "Meetinghouse Locator" feature on the Church's website) and called and explained the situation.  He said he would take care of things.  I told him I could give him a few weeks to sort this out (by this point my client had given me carte blanche to handle it as I saw fit, just to keep them updated).  By the end of the day, the bishop had the tenant moved out and into a spare room of a neighbor.  

There are, fairly often, opportunities to find some sort of "win/win" outcome to a legal dispute.

Thanks,

-Smac

Edited August 14, 2020 by smac97

[HappyJackWagon]

45 minutes ago, smac97 said:

Yes.  I owe a fiduciary duty to my client.  However, I am also obligated to follow the law, the rules of professional conduct, my personal moral code, and so on.

I can't breach my fiduciary duty.  

However, there have been times when I have helped the opposing party.  Some years ago I was working on an eviction in Salt Lake.  On the morning of an eviction (as in the police actually showing up at the door to escort the tenant out and change the locks) I got a call from a neighbor of the tenant who told me that the tenant was elderly, was more or less infirm (homebound) and on oxygen, did not have family, had no money to speak of, and that proceeding with the suit would mean she would literally be "out on the street."  I did not know any of this (the tenant had not responded to any part of the lawsuit, so we had no way of knowing).  I called the police that were enforcing the lockout and told them to stand down.  I called my client and explained I was stopping the eviction process, as I was concerned about the welfare of the tenant, and also about the "reputational harm" that could accrue to my client.  Based on the neighbor's remarks (he said the tenant was in his ward), I located the bishop of the ward (I used the "Meetinghouse Locator" feature on the Church's website) and called and explained the situation.  He said he would take care of things.  I told him I could give him a few weeks to sort this out (by this point my client had given me carte blanche to handle it as I saw fit, just to keep them updated).  By the end of the day, the bishop had the tenant moved out and into a spare room of a neighbor.  

There are, fairly often, opportunities to find some sort of "win/win" outcome to a legal dispute.

Thanks,

-Smac

Well done!

[smac97]

28 minutes ago, HappyJackWagon said:

Well done!

Yeah, well.  The planets aligned.  There have been plenty of times where my fiduciary duty has required me to do something not particularly pleasant.  This one had a happy ending.  Many times, lawyers are called upon to do difficult but necessary things.  Same with law enforcement.  And doctors.  

Thanks,

-Smac

[Calm]

4 hours ago, smac97 said:

The letter is not directed at "other members" (except, perhaps, for RSP, EQP, etc.)

I agree, that was my point. The Church doesn’t hand out the contact info of the church lawyers except to a very limited few, so they can’t be expecting every member to be contacting church headquarters in any legal case (the Church wants to pay for its lawyers to give advice to all its members for things like small claims court or divorce agreements?!)

But that is not how it is being presented though or understood by nonmembers. They have been told we have a lay leadership where anyone can be a leader (any teacher, adviser, or secretary is included) and therefore members will understand this as a directive to anyone for any legal case even to the point of telling members they shouldn’t talk to police or get in the witness stand. 

Edited August 14, 2020 by Calm

[smac97]

4 minutes ago, Calm said:

I agree, that was my point. The Church doesn’t hand out the contact info of the church lawyers except to a very limited few, so they can’t be expecting every member to be contacting church headquarters in any legal case (the Church wants to pay for its lawyers to give advice to all its members for things like small claims court or divorce agreements?!)

I don't understand.  The Church's letter includes instructions for local leaders.  The instruction is not intended for regular members, who are at liberty to do whatever they want in terms of appearing in court.

4 minutes ago, Calm said:

But that is not how it is being presented though or understood by nonmembers.

The confusion is more attributable to lazy media outlets using this story as clickbait, and self-promoting attorneys looking for a bit of free publicity.

4 minutes ago, Calm said:

They have been told we have a lay leadership where anyone can be a leader (any teacher, adviser, or secretary is included) and therefore members will understand this as a directive to anyone. 

Why?  The letter is not directed to them.

Thanks,

-Smac

[Storm Rider]

On 8/13/2020 at 12:13 PM, JAHS said:

LDS Church urges leaders to not participate in ‘any type of court case’

Members of the Church of Jesus Christ of Latter-day Saints are questioning a letter that was sent to leaders last week reminding them of a policy that prevents them from getting involved in “any type of court case” without speaking first to the Church.

The letter, dated August 4, 2020, was addressed to leaders in the United States and Canada. It was signed by members of the First Presidency.

“We remind leaders and members of a long-standing policy that Church leaders should not involve themselves in civil or criminal cases regarding members in their units, quorums, or organizations without first consulting with Church legal counsel,” the letter reads. “However well intentioned, Church leaders sharing information in legal proceedings can sometimes be misinterpreted and even damaging. Following the Church’s policy also keeps the Church from being inappropriately implicated in legal matters.”

When FOX 13 reached out to the Church for clarification on the letter, a spokesperson indicated the policy exists to dissuade leaders from being involved in legal matters.

“(The Church) would encourage them not to get involved,” said Sam Penrod, a media relations manager for the Church. “That’s the whole point, is that local leaders shouldn’t get involved in any type of court case."

FOX 13 asked if leaders of the Church would still be discouraged from responding to a subpoena if they have information related to a case.

“I can’t speak to that,” Penrod responded. “They just don’t want the Church involved.”

FOX 13 has spoken to attorneys, members of the Church, and former members of the Church who have concerns about the way that statement could be interpreted as promoting “obstruction of justice.”

“To have the Church put out a statement like this… I’m really concerned about it,” sighed Joanna Smith, an active member of the Church. “If we’re going to be a church and not a corporation, we should be telling the truth in everything we say and do, just like our teachings teach us to.”

However,  Zambrano, (a California attorney) said he had grave concerns about any sort of blanket policy that might exist behind closed doors that would prohibit leaders from testifying or responding to a subpoena.
“That would be an obstruction of justice, to willfully not participate in the investigative process of a crime,” Zambrano said. “This is no different than the culture of silence that led to the abuse of these kids in the Catholic Church… It’s a form of coercion. It’s a form of imposing duress on people. It’s a danger to our society!”

Rocky Anderson, an attorney and former mayor of Salt Lake City, said he believes the policy indicates “cultish control of members.”

This has been a standing policy to seek advice from Church legal council.  Did anyone here question the letter? Are the concerns justified about it being an obstruction of justice?

I don't think this has anything to do with telling the truth; it has everything to do with the intricacies of the legal system. It is naïve to think that a Church leader will just traipse into a court proceeding and participate without first talking to the legal department of the Church. It is not what is said, but how things are said that can affect the proceeding.

Unless you are a skilled attorney, whether you are a church leader or not, my advice is to stay as far away from the legal system as possible. Those proceedings have nothing to do with the truth and everything to do with the skill of the attorneys using the law to serve their client. 

[Calm]

13 minutes ago, smac97 said:

Why?  The letter is not directed to them.

I don’t know, a few made comments about how anyone can be a leader, Means using 26% which is the full church membership, and the rest assumed it was true, I guess. 

[smac97]

7 minutes ago, Calm said:

Quote

Why?  The letter is not directed to them.

I don’t know, a few made comments about how anyone can be a leader,

And during the time period when the individual member is serving as, say, a bishop, the letter applies to them.  Otherwise, it does not.

7 minutes ago, Calm said:

Means using 26% which is the full church membership, and the rest assumed it was true, I guess. 

Means is exaggerating, perhaps in anticipation of a change of venue.  What he said is poppycock.

Thanks,

-Smac

[alter idem]

On 8/13/2020 at 10:28 AM, strappinglad said:

People keep skipping over this part. It is wise to consult legal counsel before dealing with any matters which might involve the judicial system. It is NOT obstruction to consult a lawyer!

Yea, they do keep skipping over this and acting like it's new.  I think it said it was a 'reminder'.

[Calm]

1 hour ago, Calm said:

he Church doesn’t hand out the contact info of the church lawyers except to a very limited few,

I am wrong on this as the current online handbook has the info.  However, it says “stake presidents”.

https://www.churchofjesuschrist.org/study/manual/general-handbook/38-church-policies-and-guidelines?lang=eng#title_number161

[alter idem]

36 minutes ago, Calm said:

I am wrong on this as the current online handbook has the info.  However, it says “stake presidents”.

https://www.churchofjesuschrist.org/study/manual/general-handbook/38-church-policies-and-guidelines?lang=eng#title_number161

When I read this a week or so ago, I got the impression it was counsel for those in church leadership positions, that if,  because of their church position, they were involved in a legal case, they were reminded to not ignore the step of consulting  church lawyers. Seems like a no brainer to me.  I did not perceive it the way it was portrayed by Mr. Means, Lori Vallow's attorney.  I felt he was spinning it in a way that he thinks will somehow help his case.

I could be missing something though.

[Calm]

31 minutes ago, alter idem said:

When I read this a week or so ago, I got the impression it was counsel for those in church leadership positions, that if,  because of their church position, they were involved in a legal case, they were reminded to not ignore the step of consulting  church lawyers. Seems like a no brainer to me.  I did not perceive it the way it was portrayed by Mr. Means, Lori Vallow's attorney.  I felt he was spinning it in a way that he thinks will somehow help his case.

I could be missing something though.

I don't think you are.  Just based on how the Church has operated in the past.  As a poster on WS stated, all one has to look at is all the legal cases going on in Utah and Idaho to know the Church hasn't been warning members off being involved in legal cases.

The letter could have been released when it was since the Daybell case has moved to arraignment and more witnesses will start giving dispositions for possible use in the trials and there are enough leaders that could be involved, there is no reason to assume it is meant for everyone, For example there are numerous bishops being potentially involved as character witnesses, confessors, explaining Church doctrine, straight forward witnesses as we are talking about multiple bishops in Arizona, maybe one or two in Utah, same in Texas, one in Hawaii, and likely several in Idaho.

But there are a few other cases we have talked about lately that might have had an impact as well.

I am wondering if it makes a case for not sharing confessions, etc stronger if the Church takes a more public stand.

Edited August 14, 2020 by Calm

[JAHS]

1 hour ago, Calm said:

I am wrong on this as the current online handbook has the info.  However, it says “stake presidents”.

https://www.churchofjesuschrist.org/study/manual/general-handbook/38-church-policies-and-guidelines?lang=eng#title_number161

I think it still applies to Bishops, who would let their Stake President know the situation so he can contact church legal office to get the counsel for the Bishop.

The next section says:
"Church leaders should not involve themselves in civil or criminal cases for members in their units, quorums, or organizations without first consulting with Church legal counsel."
 

Edited August 14, 2020 by JAHS

[Calm]

28 minutes ago, JAHS said:

I think it still applies to Bishops, who would let their Stake President know the situation so he can contact church legal office to get the counsel for the Bishop.

The next section says:
"Church leaders should not involve themselves in civil or criminal cases for members in their units, quorums, or organizations without first consulting with Church legal counsel."
 

Definitely bishops.  Quorums and organizations are supervised by bishops, but could refer to other leaders, though still limited to a small percentage of members if referring to active.

[PacMan]

On 8/14/2020 at 7:41 AM, HappyJackWagon said:

You've got that backwards. The bishop is not the client of the attorney (or paralegal or whomever is on the phone). The church is.

Please explain how I fundamentally don't understand the law and who the church's attorneys represent. Seriously. I must be super dense because I don't understand your position one bit. As a bishop I never signed anything to "hire" a church attorney to work for me. The hotline is for the church, not the bishop, not the members. It's to protect the interests of the church as an organization. Now, it's true that often times those interests will align but the attorneys for the church do not have the well-being of the individual bishop or members as their priority as an attorney for that person would. Their client is the Church. I assume you're an attorney so please explain how I'm wrong.

I’m glad I can educate you.

You fundamentally do not understand how the attorney-client relationship works. It is not based on a written contract. It’s based on the reasonable belief of the client, which is de facto reasonable when an attorney is giving someone advice. I could point you to all sorts of case law. I’ve litigated legal malpractice in federal court. This isn’t controversial. Whether you agree or disagree, understand it or not, is immaterial. 

The hotline exists to explain to bishops their legal duties, which vary from jurisdiction to jurisdiction. That’s its purpose. 

Edited August 15, 2020 by PacMan

[PacMan]

On 8/14/2020 at 9:44 AM, smac97 said:

Well, not really.  A bishop acting in his capacity as bishop is an agent/representative of the Church.  The Church's attorneys are giving advice to the bishop in his (the bishop's) representative capacity.

Yes, my experience was also very different from HJW's.  I found the helpline to be quite helpful.

Thanks,

-Smac

No, Smac. That isn’t quite right.

Reporting requirements accrue to the bishop as an individual, not just as a bishop (as an agent of the church). While there is an agency relationship between the church and a bishop, that does not affect the attorney-client analysis because the hotline is providing advice regarding liability in the bishop’s personal capacity as one with reportable information.

Edited August 15, 2020 by PacMan

[mfbukowski]

2 hours ago, PacMan said:

No, Smac. That isn’t quite right.

Reporting requirements accrue to the bishop as an individual, not just as a bishop (as an agent of the church). While there is an agency relationship between the church and a bishop, that does not affect the attorney-client analysis because the hotline is providing advice regarding liability in the bishop’s personal capacity as one with reportable information.

Thanks.

As I said earlier. I have received advice regarding my personal liability or lack thereof, from the hotline, several times while bishop, and was grateful for it.

[strappinglad]

If and when push comes to shove (literally or figuratively ) ,under what circumstances would the  Church lawyers recommend that a leader or member retain their own personal lawyer?

[The Nehor]

14 hours ago, strappinglad said:

If and when push comes to shove (literally or figuratively ) ,under what circumstances would the  Church lawyers recommend that a leader or member retain their own personal lawyer?

Why would they tell anyone to get their own lawyer?

[Tacenda]

On 8/14/2020 at 1:51 PM, Calm said:

I agree, that was my point. The Church doesn’t hand out the contact info of the church lawyers except to a very limited few, so they can’t be expecting every member to be contacting church headquarters in any legal case (the Church wants to pay for its lawyers to give advice to all its members for things like small claims court or divorce agreements?!)

But that is not how it is being presented though or understood by nonmembers. They have been told we have a lay leadership where anyone can be a leader (any teacher, adviser, or secretary is included) and therefore members will understand this as a directive to anyone for any legal case even to the point of telling members they shouldn’t talk to police or get in the witness stand. 

Yes, and may seem cultish to an outsider.

[Calm]

1 hour ago, Tacenda said:

Yes, and may seem cultish to an outsider.

Imo, only if presentled in a twisted way.