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If I am not mistaken, a court has previously explicitly held that a church does not have a fiduciary relationship to its adherents in the case of a JW who alleged abuse at the hands of a church officials. I might have that holding backwards, though.

Anyway, aside from the First Amendment question, the fiduciary duty is improper here. A fiduciary duty consists of two parts, a duty of loyalty and a duty of care. The duty of loyalty is the defining characteristic of the fiduciary duty; the duty of care measures negligence in performance of a skill. Courts widely misunderstand this principle. I discuss fiduciary duties in some detail in my 2004 law review article about the misapplication of the fiduciary duty in mineral leasing (see especially part III). Professor William A. Gregory (author of the Hornbook on Agency and Partnership law) takes the same approach I do in his 2005 law review article (unfortunately, he doesn't cite me).

I'd agree, John. No plaintiff is going to argue against a theory the court is willing to endorse, but IMO it makes more sense to see these cases as tort actions (clergy malpractice, negligent hiring, or negligent supervision) than as a breach of fiduciary duty. But tort theories run right up against the difficulty that a court defining an acceptable standard of care for conduct, hiring, or supervision seems to step into the role of dictating how churches should conduct their affairs, which raises First Amendment concerns. The Supreme Court has shown no prior willingness to go down the path of government entanglement. Breach of fiduciary duty does not appear to raise that specific concern in the same way as the tort theories.

But arguing that a fiduciary obligation exists between church officials and the congregation exhibits a misunderstanding of what a fiduciary obligation is--fundamentally a duty of loyalty. That is inapposite in such a situation.

john: Flesh that it. how is it odd? Aren't 'members' loyal to their church? isn't a church 'loyal' to its members? if courts are willing to recognize a privileged relationship between penitent & clergy, the leap to fiduciary duty doesn't seem that wide a divide.

That is not what is meant by a fiduciary duty of loyalty. Loyalty in this context means a duty to avoid self-dealing to the financial detriment, or even, under Magruder v. Drury, absent any detriment to the person in the relationship to whom the obligation accrues. It is hard to see how a church could have a fiduciary duty towards its members such that the sexual abuse perpetrated by one official could constitute a breach of fiduciary duty on the part of the Church.

As I said before, the fiduciary duty contains both a duty of loyalty and a duty of care, but the duty of loyalty is the defining characteristic of the fiduciary duty. Thus, you can owe someone an extremely high duty of care but if the relationship is missing this aspect of the duty of loyalty, then no matter how high the duty of care, there is no fiduciary duty, but merely a duty of care. So, perhaps a Church might owe its members a high duty of care (that is debatable, in my view), but that does not make it a fiduciary duty.

In other words, courts and our society generally are misusing the concept of a fiduciary duty, mistakenly simply equating it with a high duty of care. In reality, however, if you impose a fiduciary duty on someone, it constrains them much more than a duty of care, no matter how strict. That is because you heap on the extra component of the duty of loyalty, which prevents self-dealing or profit of any kind out of the situation. Courts should stay with the negligence and duty of care analysis unless there really is a fiduciary duty involved. The expansion of fiduciary duties into many ares of law, leaving the concept's traditional and appropriate contexts of trust and agency, is a big mistake, in my opinion.

I realize that this is a different view than Jack Welch takes, who seems to favor expanding the concept of the fiduciary into any number of areas of law and relationships, and in creating a series of degrees of fiduciary. That is probably why you are puzzled with my approach, since you had Welch for the fiduciary seminar. Read my article linked above as well as the article by Gregory. Gregory argues that equating "fiduciary" with a duty of care, which is actually the province of negligence, is a misuse and misunderstanding of the word and concept. My article, in part III, lays out what I believe to be an accurate portrayal of what the fiduciary duty and the fiduciary really is, and then in the rest of the article, I meticulously show why application of the fiduciary duty in certain aspects of mineral leasing, which is what courts have done since the 1980s, is a very unfortunate thing and intereferes with appropriate contract and property rights.

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