Advising on Whether to Limit Liability or Care for Victims

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Theresa Sidebotham assists organizations in the U.S. and internationally, with a special focus on employment law, religious and nonprofit law, and child safety. She advises on numerous misconduct investigations. She is also the founder of Telios Law PLLC. Theresa was mentored by judges at the Colorado Court of Appeals and worked at a large law firm serving religious institutions and doing general litigation before opening Telios Law. She has since gone on to represent a variety of businesses, ministries, churches, and individual clients in matters ranging from child protection to employment to civil rights and more. Her cross-cultural experience helps her serve ministries and businesses well, particularly in negotiating employment problems and conducting internal investigations into misconduct allegations.

Ministries—and their attorneys—often wrestle with the ethical question of whether their responsibility is to limit liability for their organization or whether they have a higher obligation to care for victims, survivors, and the vulnerable. This is not only an important question to answer, but also an important question to question, because it is framed as a binary choice. And a binary choice is often simplistic and even deceptive.

Questioning the Question

Humans often see life in binary choices and swing to one position or the other. Is the legal system unjust to the poor? Let’s not put anyone in prison! Do babies get spoiled when you hold them all day? Let’s feed them on a rigid four-hour schedule and leave them alone in their cribs! Is harsh discipline bad for children? Let’s allow children to fully express themselves in every situation! And let’s not even get started on the various diets. Back and forth we swing, correcting problems with an excess in the other direction.

But approaching some things as a binary question is like asking if the plants in your garden need water or sunshine. Some plants need more of one or the other, but all plants need some of both. It’s also like asking if God is just or loving. You can spend a lifetime understanding that answer as “Yes.”

Relationship and complexity are baked into the nature of things. Studies show that companies with a strong vision have more productive employees and tend to make money, while companies focused purely on money are depressing places to spend your work life. Doctors who are willing to own and apologize for mistakes are less likely to get sued than doctors who clam up because of “legal liability”—and, more importantly, are more likely to experience relational restoration with injured patients. The whole point of Charles Dickens’ work, A Christmas Carol, is that business principles are insufficient as life principles. If you seek the Kingdom of Heaven first, the other things so important to us really do fall in line. (Matthew 6:33)

Your Broader Responsibilities

For ministry leaders: You can run a ministry well and safeguard and care for the vulnerable—and to carry out your Scriptural responsibilities, you must. Good shepherds strengthen the weak, heal the sick, and look for the lost. (Ezekiel 34). They put the interests of their sheep ahead of their own. (John 10). You’re not going to please God with a well-run ministry that has missed carrying out the core functions.

For attorneys: While we certainly have to inform clients about legal liability, it’s a mistake to focus only on legal principles when navigating complex situations. Ethical Rule 2.1 talks about the attorney in the role of a counselor.

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.

Even though hired by a client, an attorney has to stay independent and be candid. We should also take into account the complexity of the moral, economic, and social situation—including, for a ministry, the imperatives of the Kingdom of God. Advice that only takes into account short-term liability tends to come back to bite the client.

One other note: A question about how to respond to a crisis tends to be rephrased in an attorney’s mind as, “If a victim comes after the organization, how will we defend the lawsuit?” While this question may need to be asked, it may not be the important first question to be answered. The first question should consider how to help someone who has been hurt.

True, sometimes lawsuits need to be defended, and sometimes what victims need is a generous settlement. Usually, caring for victims outside of court is better. Most of the time, a lawsuit is bad for everyone involved. While it’s fairly obvious that a lawsuit is practically bad for an organization, it can actually be worse for a victim. A lawsuit is long and arduous and fixates your attention on the place of trauma, reframing your life story to that injury. I was asked recently why I didn’t file a lawsuit over a legitimate financial injury. After thinking about it for a moment, I said, “I just don’t need to live my life in that space.” If victims can be well cared for without lawsuits, it’s better for them as well. Most people file lawsuits when they feel forced into it or talked into it, not because they want to or think it will be life-giving.

Let’s reframe the question: How do we run a ministry well, in terms of preventing and responding to all kinds of misconduct while caring for people?

Answering the New Question

Our new and more complex question is much easier to address before bad things happen. So, the ministry must be proactive. Once it has more than a handful of people, it needs structure and systems to prevent and respond to problems. When ministries assume that problems “can’t happen here,” it’s a setup for disaster. Here are some approaches that protect both the vulnerable and the organization.

  • Commit as top leadership (i.e. the Board) to both care for people and have responsible systems.
  • Put in place child safeguarding processes—including screening, training, and responses, according to best practices (as laid out at ecap.net).
  • Put in place good HR policies and responses to prevent harassment, discrimination, bullying, or spiritual abuse.
  • Put in place good financial practices and accountability.
  • Train people properly so everyone understands these processes and policies.
  • Have adequate insurance coverage in place—this both protects an organization legally and also allows people who are hurt to be cared for.
  • Structure the assets of the organization carefully so that a single lawsuit won’t wipe it out.
  • Have structured and clear ways for people to reach out when they see or experience problems (both abuse and other forms of hurt). This includes child safeguarding complaints, HR complaints, ethical complaints, financial complaints, relational complaints, etc.
  • Have structured ways to respond and address complaints: mandated reporting, strong HR processes, Board and leadership awareness, internal and external investigations, pastoral intervention, Christian conciliation, victim resources, counseling resources, and others.
  • Invest resources in healing, reconciliation, and repentance. These concepts are expressed well with Ken Sande’s relational wisdom concepts at RW360 or in the Life Model Works approach (such as Jim Wilder’s The Other Half of Church).

Be careful not to define ministry success as talented work product. One of the easiest ways for ministries to go wrong in shepherding is to allow free rein to talented but toxic leaders. Unless ministries face the truth about people (instead of ignoring complaints) and insist on good shepherding, they will fail to build something that pleases Jesus, even if it’s outwardly successful. This failure is at play in most (though not all) of the complaints and investigations we see. Many successful ministry leaders have gained their “world” at great jeopardy of their souls.

Lastly, consider this. While most of the time, caring well for people and reducing legal liability go hand in hand surprisingly well, sometimes you face a hard choice. Something has happened and you’re in the middle of it. An apology, a mediation, care for a victim, or telling an important truth might create legal liability for the organization. But it might be the right thing to do. In that case, decide which option would obey Jesus and pick up your cross.

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