Victims' Confidentiality Agreements: Price of Broken Vows

By ADAM LIPTAK - The New York Times, May 27, 2002

News Analysis

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 happen.

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 enforceable."

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 it anonymously.

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 probably nil."

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 very large.

"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 high settlement."

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 a sort.

"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 obligations.

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 its content."

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.