Victims' Confidentiality Agreements:
Price of Broken Vows
By ADAM LIPTAK - The New York Times, May
Four years ago, Paul Marcoux accepted $450,000 in exchange
for his silence about what he says was sexual misconduct by
Archbishop Rembert G. Weakland of Milwaukee decades earlier.
On Thursday, he was on national television discussing his
claims and the settlement itself.
Legal experts say the archbishop is entitled to get his money
back. Yet as a practical matter, they say, that will never
Lawyers on both sides of clergy sexual abuse cases estimate
that about two dozen people have spoken to the press in the
face of confidentiality agreements. Yet no one, they agree,
has been sued.
"I have counseled over a dozen people who decided to
speak out after signing a confidentiality agreement,"
said Jeffrey R. Anderson, a lawyer in St. Paul who represents
victims of sexual abuse by the clergy, "and yet not one
has had any action taken against them."
There is little question that churches could win lawsuits
against people like Mr. Marcoux.
"This is a terrible breach," Lester A. Pines, a
lawyer in Madison, Wis., said of Mr. Marcoux's television
interview. Mr. Pines, who reviewed the settlement agreement
between the archbishop and Mr. Marcoux at a reporter's request,
said, "It's a very good agreement, and it's completely
In the agreement, Mr. Marcoux promised not to disclose his
accusations or the terms of the settlement. In the event of
a breach, he agreed to "return to the archdiocese all
sums paid to him."
The agreement also required Mr. Marcoux to return all copies
of correspondence from Archbishop Weakland. A 1980 letter
from the archbishop to Mr. Marcoux nevertheless found its
way to news organizations through someone who said he received
Mr. Marcoux's interviews with ABC News and The Milwaukee
Journal Sentinel would seem to be a plain breach of the confidentiality
clause, which prohibits disclosures to "any newspaper,
any electronic media, reporters, and any other individual."
Nonetheless, said Patrick J. Schiltz, dean of the University
of St. Thomas School of Law in Minneapolis, "these things
are not worth the paper they're written on."
In private practice, Professor Schiltz represented churches
in sexual abuse cases. "In 500 cases," he said,
"I never advised a church to have such an agreement."
What explains the inconsistency between the legal force of
the agreement and its practical worthlessness? Lawyers point
to several factors.
The first is public relations. "As a practical matter,
looking beyond the law here, what are the probabilities that
a church would be dumb enough to go after him?" asked
Jeffrey A. Newman, a plaintiffs' lawyer in Massachusetts.
"They would be savaged."
Professor Schiltz agreed. "You can't sue the victim,"
he said, "because then you're beating up on the victim
and you get crucified in the press."
That does not mean that confidentiality agreements generally
may be violated at will. "A corporation can play hardball
in a way a church can't," Professor Schiltz said.
A lawsuit would be counterproductive in a second way, said
Gregory Conway, a lawyer in Green Bay, Wis., as it would draw
yet more attention to the very allegations the agreement was
meant to suppress.
On the most practical level, the money paid may well be gone.
As Mr. Pines put it, "The likelihood of collecting is
Precisely what Archbishop Weakland paid for also colors the
analysis. A court would be more likely to order that the settlement
payment be returned if it was for silence rather than compensation.
Wisconsin law is quite favorable to defendants in clergy
sexual abuse cases. In 1995, the Wisconsin Supreme Court applied
a three-year statute of limitations to dismiss a sexual abuse
claim against a priest and held that related claims against
the Archdiocese of Milwaukee were barred by the First Amendment.
That suggests that Mr. Marcoux's legal claim was valueless
as an economic matter. What he was paid for, then, was silence.
Especially in light of the legal obstacles Mr. Marcoux would
have had to overcome, experts said the settlement amount was
"They look to me to have vastly overpaid," Professor
Schiltz said. "I settled 200 cases for churches, and
we never approached half of that amount. It's an extraordinarily
Were the archbishop to sue under the settlement agreement,
Mr. Marcoux might argue that he should be excused from the
confidentiality agreement because he is a whistle-blower of
"The courts of every state can undo any contract if
it is against public policy," Mr. Newman said.
But Robert P. Varian, a San Francisco lawyer, said the courts
set the bar high for such public policy exceptions. "You're
going to be held to the contract unless there is a really
strong public policy issue," he said.
Jeffrey S. Wigand, who was sued by the Brown & Williamson
tobacco company for violating a confidentiality agreement
by appearing on "60 Minutes," said the standard
should be whether public health and safety are threatened
by continued secrecy.
"I was allowed to break my confidentiality agreement
because it prevented the public from being better served,"
he said, adding that he was coerced into signing it in a way
that clergy abuse victims may not have been.
Professor Schiltz was unsympathetic to the public policy
argument, saying that Mr. Marcoux should not be able to have
his cake and eat it too. If his goal was to speak out, Professor
Schiltz said, he need not have accepted the money.
"Why did you allow yourself to be bought out in the
first place?" he asked. "If it's a horrible thing
to buy secrecy, it's a horrible thing to sell it, too."
Even if Mr. Marcoux came to have second thoughts about the
secrecy agreement and was not inclined to or could not return
the money, legal experts said he had another alternative.
He could have petitioned a court to be relieved of his confidentiality
As it turned out, the only benefit Archbishop Weakland is
likely to have received from the confidentiality provision
is the ability to hide behind it.
"Because I accept the agreement's confidentiality provision,"
he said in a statement, "I will make no comment about
But the confidentiality provision in the agreement runs in
only one direction. Mr. Marcoux, who spoke, was bound by it.
Archbishop Weakland, who remained silent, was not.