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How to Avoid a Lawsuit

Truth in Love 300

Does seeking legal counsel demonstrate a lack of faith in God?

Mar 1, 2021

Dale Johnson: I can’t tell you how excited I am to launch us into this week and to have our speaker here with us, Todd Sorrell. He’s a dear brother. We are excited about the work that’s being done, many of you may remember that he spoke at our Pre-Conference last year in 2020 talking about biblical counseling and legal issues. He’s back giving us some great wisdom on legal issues once again. 

We’re excited as we look forward to our book that’s coming out, Free to be the Church: Legal Issues and Biblical Counseling. Todd is a contributor to this volume that I think is very important. Todd and I were even discussing before we got on here live, and I tell you what, Todd, one of the interesting things to me as we think about legal issues is pastors are very afraid and particularly after the season that we’ve been through, it seems to have ramped up a little bit of fear relative to legal issues.

It’s not that they don’t want to do ministry or they want to be hindered by the things that they’re called to do from God, but there is this sense that they don’t want to make a mistake. A lot of that is unintended, a lot of it may be out of ignorance—just not knowing what they should or shouldn’t do, wanting to obey the law, but often we find ourselves, even as pastors, getting paralyzed in some of these ways. I’m so glad that you’re here to help us to understand the issue of legalities, particularly as it relates to lawsuits and being sued. 

Let’s launch off into this. I want to ask the first question. Is it really any way for pastors, as they think and maybe they’re fearful about legal issues and some of the things they’ve seen unfold over the past several months, is there anything that pastors can do or counselors can do so that they won’t get sued? 

Todd Sorrell: Thanks, Dale. One of the things that is so exciting about biblical counseling, when I finally got trained through the Association and through my education, is that it opened my eyes to the fact that the Bible is practical. The Bible has answers to life’s questions. Now, you’re not going to find a chapter in the Bible or a verse in the Bible that tells you exactly how to avoid getting sued. There’s nothing in there about that, but the Bible says plenty about wise planning. It says plenty about seeking counsel. It says plenty that pastors and counselors alike can look to in terms of trying to avoid a lawsuit.

Now, the real question is: What do I do to avoid getting sued? Well, guess what? Nothing. There is no magical formula you can follow. There’s nothing that’s going to keep you from getting sued. At least no one can give you a guarantee that there won’t be a lawsuit. I’ve seen tons of lawsuits that have been filed that have no merit. People sue all the time for whatever reason. Now that being said, there are some things I think that pastors and counselors can do to minimize their risks of getting sued. Now keep in mind, I practice in different parts of the country. I’m licensed in California, and I will tell you there are a lot of different laws in different jurisdictions, and that people should look up. That being said, there are some basic guidelines I think everybody can follow.

First—and this is biblical—hone your craft. What I mean by that is that a biblical counselor or a pastor should follow 2 Timothy 2:15: be diligent to present yourself approved to God as a workman who does not need to be ashamed, rightly handling the word of truth. What that means is you should work hard. I refer back to the book of Nehemiah, where Nehemiah had gone back, he’s standing there, he’s starting to build the walls, and in chapter 4 it indicates that the people were making progress on the walls because they had a mind to work. 

What that means for us is we need to be excellent and not be lazy. It doesn’t matter if you’re talking about a person in the church, a counselor, a pastor—we need to be diligent. Too often we get lackadaisical about our approach to the Bible and about what we’re doing, about what we want to do. But in reality what we should do is bear down, knowing our audience is God—God Himself. If you tell me that a pastor or counselor is somewhat paralyzed in fear of taking the wrong step, I would say you step out in faith after having prepared and being diligent in rightly handling God’s truth. 

As a counselor, who is just a disciple-maker turning to the Bible or a pastor who’s running a church, ask yourself: What does the Bible say God would have me do? If, for example, a pastor feels compelled from biblical study that he and his church need a biblical counseling program—by the way, which is discipleship and all of us should be doing that. It doesn’t matter if you’re a pastor or layperson; biblical counseling is just discipleship, which was Jesus’ last command, to go out and teach people to obey. If a pastor feels compelled and feels like he is supposed to be doing that, then his fear needs to be set aside and that’s the counsel we would be giving anyway. If he came to counseling for that fear, you’d be opening the Bible and showing him that that fear is unfounded, and that fear perhaps borders sinful if he’s not obeying God’s call on his life. I would say be diligent, work hard.

I also go back to to Nehemiah where the people—and we all know the story—they’re building the wall. The people had a tool in one hand and a sword in the other. We always think about the sword, right? We think, “Oh, they had the sword in hand to fend off enemies. There’s truth to that—that might be what your lawyer is, by the way, your sword. But in the other hand they had a tool. What were they doing? They were building a wall—building a defense. I think studying God’s Word, being diligent in that regard, is building a defense to potential lawsuits. 

The first thing you do is you hone your craft, you’re diligent. The second thing you do, I believe, is to manage expectations. If a pastor says, “I don’t want to get into this biblical counseling ministry; we might get sued, we might run afoul of some rules.” Handle that upfront. Have, for example, a written Consent to Counsel form. We can provide those. I’ve put them together and there’s no magic to them, but I think detailed written Consent to Counsel forms, which manages everyone’s expectations up front, are of paramount importance because it tells people: This is what you’re getting yourself into. When you come to counseling, we’re not going to be giving you secular therapy, behavior modification. We’re going to be opening God’s Word, setting aside our opinions and we’re saying, “What does God have to say about this issue?” And if God says do something, that’s what we’re going to tell you to do. It doesn’t matter what the world says. We put it squarely in the language of the Consent of Counsel forms that this is part of our ministry of the gospel of Jesus Christ. This is part of our practice of religion, so that we’re trying to remove it from the purview of government interference or regulation. 

We are trying to eliminate the possibility that someone later on would say, “Oh, you should have sent me to anger management counseling,” or, “You should have prescribed medication,” or, “I really thought you were a psychotherapist.” We put it up front, in writing, black and white; they can read it. They have to consent and once they consent, we’re off and running. If they don’t consent, then I would not personally engage in counseling with that person. For pastors wondering how to handle these things, I would say you can minimize your risk in advance by having things in writing to explain exactly what someone can expect.

Dale Johnson: That’s so important. As you talk through that, I’m hearing several things. You mentioned an informed consent, which we definitely talked about as delimitations. These are things that we are and these are things that we are not when we provide biblical counseling. We’re not providing diagnoses. We’re not providing psychological categories as labels. We’re not hanging a shingle. We’re not presenting ourselves in that form; it’s so important to have that up front. But you mentioned we should grow in faith. Todd, help us to understand, is it growing in faith if I’m putting together these types of forms? Is seeking legal counsel, is getting wisdom on how we should put these things together, is that demonstrating a lack of faith? Or is that actually putting trust in God when we put these types of documents in place?

Todd Sorrell: I have heard from a number of people that requiring a Consent to Counsel form is a lack of trust in God. I just think that’s amazingly silly. I’m not putting down your question. But when I hear it, I just kind of raise my eyebrows inside my head and think, “What in the world are you talking about?” God Himself, does not He tell us to wisely plan ahead? Does He not point in Proverbs to the ant to store up for the winter? Does He not say that a builder plans before building a house or construction project? He tells us to do these things because God’s plan is that His children plan ahead. 

Now, there are some things that we shouldn’t do. We shouldn’t assume that God is not in control, or that we can thwart His purposes by certain planning. Of course not, but He does say to plan ahead. We shouldn’t assume that we know what’s going to happen tomorrow. We don’t know that. That’s for God Himself and for no one else. 

Dale Johnson: Well, that’s right. When we think about not just putting these documents into place, but also a question comes up for a pastor. He’s wondering, “I wonder what my legal limitations are in a case like this?” or a counselor, “I wonder what my legal limitations are?” What advice would you give about seeking legal counsel? And is that also a lack of trust in God?

Todd Sorrell: Certainly, not. Of course, I’m a lawyer so I think it’s important to seek legal counsel. Keep in mind two things. First, you shouldn’t be afraid because a legal perspective is simply one perspective among many, and there’s nothing wrong with getting a comprehensive view on a topic. A pastor can seek legal counsel and find out what the rules are, but above all the question has to come up: Are we to follow man’s laws or God’s laws? Now, at this point, I do not believe that there are laws that prevent us from doing what we are doing, because it’s discipleship.

Now, in the First Amendment to the United States Constitution, we see where law has developed from that article, from that amendment, to tell us that we have the freedom to practice our religion. This is squarely in our religion. This is discipleship. This is Jesus’ last command that we are to make our first concern. If a pastor’s afraid of that, I would caution him and say, “Your fear needs to be set aside to do what’s right, but seek legal counsel in the meantime.”

I’ve mentioned this before, but if a Christian landlord gets a call in the middle of the night from a tenant who says, “My pipe just burst,” he doesn’t just roll over and pray that God heals the pipe. He calls a plumber—and typically that’s a plumber he’s met before, or at least had a conversation with before so he has it in his phone. My point is you can wisely plan ahead without demonstrating a lack of trust in God. And in fact, I would argue that wise Christians actually do plan ahead. 

Dale Johnson: Yeah, I think that’s right. And it’s so important I think for us to understand that when we’re seeking legal counsel, what we’re trying to accomplish is we want to have a posture that certainly obeys the government, but we know that our sovereign is God and we have a responsibility to obey what He’s called us to do in making disciples. We can’t be limited by that. To seek legal counsel is, as you mention, a wise thing. What we want to avoid is being sued unnecessarily, where we set ourselves up—not making documents clear and making blunders that are avoidable that make us easy targets for something like a lawsuit. 

Now, I want to finish with one question. I know this will be helpful because as we think about legal issues sometimes our mind swirls, especially for those of us who haven’t practiced law or studied law. What are some practical steps counselors can take to minimize their chances at getting sued? 

Todd Sorrell: For example, as I mentioned earlier, be diligent. The other thing—the big thing—is in this Consent to Counsel form. Now, if you have a comprehensive Consent to Counsel form, it will include a number of provisions. It’s going to set forth the biblical basis for the counseling. It’s going to set forth the fact that you are limited and you are not practicing certain areas like psychotherapy, etc. But it also relates to things like termination of counseling or confidentiality. Everybody thinks, “Well, I’m counseling, so this is all confidential, right?” Wrong. There is no such thing as absolute confidentiality in biblical counseling. The forms can set forth certain examples of times when that confidentiality will be breached. The reason why is because, again, we go back to the Bible.

In Matthew 18, for example, we find that if people are in sin and unrepentant and things happen, that we’re supposed to follow a process. That process doesn’t say keep it a secret. Same thing if there’s criminal behavior going on that’s not being addressed, or if someone needs protection and we’ve heard about something—we need to reach out and address those things. But if you have it in writing up front, it’s a lot safer and it not only allows the counselor to delineate what he or she is going to do, but it gives them a roadmap or guideline to follow when they’re actually doing the counseling.

Dale Johnson: You know, Todd, this is so helpful. I think for all of us to think through. I do pray that our pastors, our certified counselors will think through these issues. We’ve tried to begin to shore these up, even at our headquarters at ACBC in recommendations that we pass down. We have some of these documents available on our website. Todd’s actually been a part of putting some of these documents together that many of you have used. The consent form that talks about limits of confidentiality and all that sort of information. I’m so grateful to men like Todd who God has given a rare skill and ability to understand law—to practice it well, but also heartbeat for the church to be able to serve God in so many different ways and to present wise counsel to us in these matters. 

We do hope this is helpful as we discuss these issues and as good as we want you to be at counseling, we also want you to be wise in the way in which you practice. We want to be above reproach in everything that we attempt to do for the sake of the name of the Lord and His Bride.