Wednesday, February 19, 2020

The Ethical Perils of Representing Multiple Parties

Attorneys for the church, the parish, the bishopric and the Malms face multiple ethical challenges. Not only are they in the distinctively unenviable place of having to defend questionable behavior on the part of Bob Malm, Sugarland Chiow and the parish, but they are representing multiple parties in this matter. Not surprisingly, the latter carries with it certain ethical challenges.

Foremost among these problems is that of divergent interests among clients. This means that legal strategies and outcomes that may be beneficial to one client may run counter to the interests of other clients.

In the case of the Baltimore-based law firm representing the parish and diocese, we’re already seeing that issue at play. Specifically, at the last hearing, defense counsel motioned the court for dismissal on two bases: That the protective order was something Bob Malm pursued in his individual capacity, or that the issue before the court is one precluded by the constitution and canons of The Episcopal Church.

Apropos the claim that Bob acted in his individual capacity, Bob Malm represented both to the vestry and to third parties that he was acting on behalf of the parish. Not only did he discuss the matter in advance with diocesan staff and members of the vestry, but in an email he claimed that his decision to pursue protective order was a form of “church discipline” he and the vestry had decided upon. How Bob Malm believes one can impose “church discipline” via the courts is beyond me, let along for someone no longer a member of the denomination, but then anything is possible in Sugarland. In fact, Bob Malm updated the vestry on the matter on multiple occasions, thus making it clear that he was acting as an agent of the parish.

That said, were defense counsel to prevail on that claim, the result would be to throw Bob Malm under the bus. Given the broken ethical reference point of the diocese and parish, this outcome would not surprise me. But it’s hardly the outcome one expects from a church, particularly when, as here, the diocese’s laissez-faire approach to clergy discipline allowed Malm to stupidly bully his way into the current hot mess.

Apropos defense counsel’s claim that judicial review of the matter is precluded by the constitution and canons of The Episcopal Church, there’s the simple reality that the parish went to court in the first place. Having initiated legal action, it is difficult to assert with a straight face that the courts are now precluded from reviewing the matter. Nor would one wish to get too far out on that limb—next thing you know, you’re arguing that clergy perjury is protected by the canons. Hardly in the clients’ long-term best interest.

Where things really get dicey, however, is when one folds Bob Malm into the client mix.

In his individual capacity, Bob’s best interests are served by remaining under the umbrella of the parish’s D&O liability policy. If that is removed, he becomes personally liable for his actions—a situation that could leave him personally on the hook for massive punitive damages.

At the same time, admitting that Bob committed perjury and engaged in witness tampering (as he did by contacting Dee Parsons multiple times in an apparent effort to change her testimony) is highly problematic, for it exposes the parish and the diocese to the possibility of serious legal consequences, as well as possible criminal liability for Bob Malm.

This paradigm, already fraught with ethical and legal risks, is complicated by the fact that churches are called, by their nature, to bring light to darkness. Or, as Canon to the Ordinary Robin Hammeal-Urban says in her excellent book on healing from clergy misconduct:

By failing to disclose truths, we are in essence lying by omission....for our relationships to be trustworthy and authentic, we need to know the truth about ourselves and others. This is particularly true for all members of congregations who have been betrayed by a trusted leader, lay or ordained. Misconduct erodes trust, not only between the offender and the primary victim, but also among other members of a congregation. To begin to rebuild or establish trust, it is essential that misconduct, which typically involves secrets and secretive behavior, be brought to light.

In other words, failing to disclose the parish’s previous misconduct via Bob Malm, Sugarland Chiow and others, or trying to sweep it under the rug via a non disclosure agreement (NDA), simply makes things worse and all but guarantees that Grace Church will collapse under the weight of its toxic culture.

Of course, folks at Grace Church will respond, “But it’s a friendly and welcoming place.” The reality,  however, is that while people at the church are cordial, the welcome mat is predicated on doing what they want. Those who criticize Bob Malm (or who are thought to have done so), will discover very quickly that they are persona non grata. And heaven help the person who runs afoul of the altar guild or the choir. That person will discover quickly just how thin Grace Church’s welcome is.

This also is a place where it’s okay to urge others to commit suicide, and that is shedding pledging units like a long-haired dog during the first hot days of spring.

That begs the issue: If Grace is such a slice of paradise, why is it in such a state of rapid decline?

And it begs my question: When will Grace Episcopal Church, the Episcopal Diocese of Virginia, and church leaders tell the truth about Bob Malm’s misconduct?