American law does not, however, give professionals a free ride. On the contrary, it regulates intimate professional-client relations closely. As we saw in the lawyer-client-bar association case that opened this chapter, professional organizations, courts, and legislatures collaborate in protecting the boundary of professional practice against two kinds of violations. The first defends against forms of intimacy that will corrupt professional practice; the second, against forms of professional practice that promote unwanted or improper intimacy. Of course, as in the Berg case, sexual intimacy causes serious threats, but so does control over a client’s private information. The kinds of information that various professionals acquire in the course of intimate but nonsexual relations with their clients often becomes germane to other crucial aspects of their clients’ lives. Indeed, a considerable body of law governs the confidentiality of personal information that professionals acquire from their clients. Physicians, psychologists, lawyers, priests, and even teachers sometimes acquire intimate information that could damage their subjects if revealed to third parties. Yet sometimes professionals pass on such information. Sometimes they have the legal right or even the legal obligation to do so. Claims to such rights and obligations come into dispute repeatedly, however, in legal proceedings concerning the intersection of economic transactions and intimacy.
Consider three such contestations—the cases of Andrew Goldstein, Chari Lightman, and Antoinette Crescenzo. In 1997, Andrew
Goldstein killed Kendra Webdale by pushing her in front of an incoming Manhattan subway train. Goldstein had been treated at several mental health facilities, most recently the Bleuler Psychotherapy Center. The Department of Mental Health, Mental Retardation, and Alcoholism began an investigation of the case in order to improve the city’s service for the mentally disabled. As part of its investigation, the department requested that the Bleuler Center turn over Goldstein’s medical records. After the center refused, then failed to comply with a subpoena, claiming the confidentiality of medical records, the case went to court. On August 25, 1999, the Supreme Court of New York ordered the Bleuler Center to turn over Goldstein’s records, stating that “the interests of justice outweigh any need for confidentiality” (City of New York v. Bleuler Psychotherapy Center, Inc., 695 N. Y.S.2d 903, 906 (N. Y. Sup. Ct. 1999)).
In 1995, Chari Lightman, an Orthodox Jew, consulted two New York rabbis, Rabbi Tzvi Flaum and Rabbi Weinberger, seeking spiritual and religious guidance. In the course of the counseling sessions, she disclosed intimate information to both rabbis. A year later, when she initiated divorce proceedings against her husband, including seeking temporary custody of their four children, her husband contested her claims, using damaging confidential evidence revealed to him by both rabbis, including that she was “seeing a man in a social setting,” and she had stopped fulfilling “religious purification laws.” Chari Lightman sued both rabbis, claiming breach of fiduciary duty violating clergy-penitent privilege. After several appeals, on November 27, 2001, the New York Court of Appeals turned down Lightman’s case, declaring that the statute creating clergy-penitent privilege, “does not give rise to a cause of action for breach of a fiduciary duty involving the disclosure of oral communications between a congregant and a cleric” (Lightman v. Flaum, 97 N. Y.2d 128, 131-32, 137 (2001)).
In 1992, Antoinette Crescenzo first consulted Walter D. Crane, a New Jersey physician for injuries caused by a car accident. She and her daughter continued under his care, and in 1997 Crane treated her for a head injury. At that time, Crescenzo confided in the doctor about her marital problems and related stress symptoms. He treated her depression with Prozac. In 1998, when Crescenzo’s husband initiated divorce proceedings, Crane was asked to turn over his patient’s medical records. He complied, and the records were used as evidence against Crescenzo in the divorce case, specifically as to her mental capacity to care for the couple’s minor child, Dana Santora. Crescenzo’s lawyer filed a complaint against the records’ release, as a violation of patient-physician privilege. After the Superior Court, Law Division, Atlantic County dismissed the complaint, Crescenzo appealed. On February 26, 2002, the court reversed the decision and remanded the case (Crescenzo v. Crane, 796 A.2d. 283 (N. J. 2002)).
In a remarkable reversal of the direction of the information flow between professional and client invoked in these three cases, columnist Lauren Slater reports an unexpected variant:
In early 2003, in his consulting room, a psychiatrist confessed to his patient he planned to kill six people, including a female patient who was also the doctor’s lover. What’s more, the doctor asked the patient for help finding chopped bait and a gun with a silencer. The doctor was later arrested at a Home Depot parking lot and charged with three counts of weapons possession by the Nassau County D. A.’s office. (Slater 2003)
More important than who revealed information is that the crucial intimacies across all four instances did not involve sexual relations, but communication of personal information. In parallel to their intervention in cases of contested sexual relations, American courts constantly get involved in adjudicating the propriety of other forms of intimacy: sharing of confidential information, offering of professional advice, provision of personal care, joint acquisition of domestic property, and transfers of valuable gifts. In doing so, they give priority to ascertaining the relationship between the parties before deciding whether the transactions they shared and the media they employed for those transactions pertained properly to that relationship.