A Plea to Keep Lawyers in Ecclesiastical Proceedings: Against PCA Overtures 10 and 14

These overtures have the outrageous practical effect of chilling the participation in ecclesiastical proceedings of PCA officers who happen to be lawyers, serving the very courts in which they are members and in the very type of matters for which they are specially gifted and trained.  This proposal is not only prejudicial to such brothers, but also detrimental to the Church. 

“The first thing we do, let’s kill all the lawyers.” Shakespeare’s line from Henry VI has passed through the lips of generations, and perhaps the disdain for lawyers is well deserved, but most people like having an advocate when they are in trouble, and that includes in ecclesiastical cases.  In The Gulag Archipelago, Aleksander Solzhenitsyn said that having a lawyer “means having beside you in the most difficult moment of your life a clear-minded ally who knows the law.” I think that is a satisfactory practical definition of a lawyer, whatever the context, and in the interest of full disclosure, I confess that I am a lawyer myself.

This year two overtures have been presented to the PCA General Assembly proposing amendments that seek to limit lawyers from representing parties in ecclesiastical proceedings: Overture 10 from Northern New England Presbytery (O10) and Overture 14 from Northern California Presbytery (O14). Both proposals suggest changes to BCO 32-19, which presently reads:

No professional counsel shall be permitted as such to appear and plead in cases of process in any court; but an accused person may, if he desires it, be represented before the Session by any communing member of the same particular church, or before any other court, by any member of that court.  A member of the court so employed shall not be allowed to sit in judgment in the case. 

The new proposal would substitute, in part, the following for the above:

In cases before any church court, no professional representative (attorney admitted to the bar or employee of a law firm) shall be permitted to appear on behalf of any party, assist with oral or written arguments, or engage in communications regarding the case, when

i. the representative is functioning in an attorney/client relationship; or
ii. the representative is remunerated in any form, including, but not limited to, fees, billings, reimbursement, or other non-monetary compensation; or
iii. the representative is engaged as a “pro bono” case; or
iv. the representative is otherwise utilizing corporate resources.

This article humbly suggests that we should keep this provision as it is.

Why the Current Prohibition Against “Professional Counsel” is Sufficient

Of course, licensed civil attorneys have operated in our Presbyterian Church courts both as advocates and as judges for generations, and this although for about 165 years there has been a prohibition of “professional counsel” in our ecclesiastical proceedings.  As best as I can tell this prohibition first emerged in 1821:

No professional counsel shall be permitted to appear and plead in cases of process in our ecclesiastical courts.  But if an accused person feel unable to represent and plead his cause to advantage, he may request any minister or elder, belonging to the judicatory before which he appears, to prepare and exhibit his cause as he may judge proper.  But the minister or elder engaged shall not be allowed, after pleading the cause of the accused, to sit in judgment as a member of the judicatory. ROD Chapter 4, Sec XXI: The Constitution of the Presbyterian Church in the United States of America. (1821), page 399.

This longstanding ban on “professional counsel” has never targeted attorneys as such up to now.  The phrase “professional counsel,” after all, might be broad enough to include any person, whether licensed to practice law or not.  But proposed O10 and O14 would abandon the current phrase “professional counsel” in favor of the phrase “professional representative,” specifically defined as “attorney admitted to the bar or employee of a law firm,” removing any doubt that lawyers particularly (and people who happen to work for them) are the distinct class of persons in view.

Is there something wrong with the phrase “professional counsel?”  I admit that the phrase may be criticized as vague.  Surely our longstanding prohibition against “professional counsel,” has presumably not meant that only unprofessional counsel is permitted. Our Constitution prescribes no specific definition of “professional counsel,” although apparently in 1999, the Committee on Constitutional Business (CCB) was asked by the Stated Clerk:

Does BCO 32-19 forbid parties in cases on appeal or complaints taken to a higher court to secure the professional services of attorneys (either members of the PCA or not members of the PCA) to prepare their appeal or complaint, prepare briefs, and handle correspondence and communications with an ecclesiastical court or its clerk?

The answer provided by CCB was as follows:

Yes BCO 32-19 forbids professional counsel from formal involvement (that is, acting in an attorney/client relationship) in cases of process in the courts of the church. Parties in such cases may, of course, seek help anywhere they can find it, but the parties should not be “represented” by professional counsel “as such” in any case, including correspondence about the case  (M27GA, page 148).

But alas, the Rules of Assembly Operation 8-2(b) prescribe that the CCB shall “function as advisor to the Stated Clerk when requested by him” and “such advice shall be for information only and without binding authority.”

I would propose that the exclusion of “professional counsel” does not prohibit financial compensation or other remuneration as such — the present rule does not mention financial remuneration — but rather prohibits a class of persons effectively functioning as a settled professional cadre of “ecclesiastical lawyers” operating in our church courts, persons who are not themselves members of those courts, but non-members authorized to function as advocates or representatives within the courts of the Church.   This is in direct contrast to the courts of the Roman Catholic Church in the medieval era where a professional class of ecclesiastical lawyers operated, men who made an art and a living out of mastering ecclesiastical law and procedure as a field of endeavor.  See, The Profession of Ecclesiastical Lawyers: An Historical Introduction, R.H. Hemholz (Cambridge University Press, 2019).   In this way, the Presbyterian judicial system was fundamentally different from the court polity in the Roman Catholic system.

In Presbyterian polity, as reflected from the 1821 amendment to the present day, a qualified representative for a party must, generally speaking, be a volunteer member of the church court before whom the case is to be heard.  In taking up the role of representative the court member agrees to relinquish his right to vote in the court’s proceedings for the sake of assisting an accused who may have difficulty representing himself. The one exception is that any member of a local church may represent another member in proceedings before their church Session, presumably for the very practical reason that some church Sessions are not large enough to spare one of its members to represent the accused.

Unlike the Presbyterian system, the lawyer representatives operating in the medieval Roman Catholic ecclesiastical courts were not members of the courts in which they served. They were trained professionals and outsiders who served as legal counsel licensed to operate in those courts.

Ordained church officers, whether Ruling or Teaching Elders, who thus serve in Presbyterian courts are not “professional counsel.”  They are members of the very court called to adjudicate the charge or dispute and, but for relinquishing their right to vote in the matter by virtue of the representation, would otherwise be entitled to participate in the decision on the case.  In judicial proceedings before a Session, a fellow church member may appear as non-professional counsel in analogous fashion.  The fellow member representative in that case is not a member of the court in question, but like the officers described above, is similarly a volunteer, is subject to the jurisdiction of and accountable to the Session that will hear the case and is not a person who is generally licensed as an advocate to appear regularly before other courts of the PCA. These features represent the essence of persons who are not “professional counsel.”  Thus, under the PCA’s current system, it is generally expected that court members will serve the needs of the court and the parties as members of the court (rather than as professionals), excluding the need for hired outsiders.

Therefore, the notion of “professional counsel” under our present system is not fundamentally guided by the presence (or absence) of remuneration as has been supposed.  The prohibition of “professional counsel” is chiefly the prohibition of persons serving as a regular class of representatives who are not members of and are therefore not subject to the qualifications, requirements, jurisdiction, and discipline of the church courts before whom they appear.

I would add that it is unlikely that such members of ecclesiastical courts, being Ruling and Teaching Elders who already volunteer their services to that court, will make a practice of developing and imposing fee schedules and rate systems for their services in ecclesiastical judicial cases, and as far as I know, such has not been the case.  Most officers of the PCA do not serve the ecclesiastical courts for pecuniary gain, and most presbyteries don’t have enough judicial business to justify such a “practice” in economic terms anyway.  In fact, the greatest likelihood for an economically justifiable ecclesiastical practice is at the General Assembly level because of the higher volume of cases produced in that court, but even this is not likely to be profitable enough to foster a “professional practice” if “professional” is understood as persons who yield a viable financial profit out of the work.

Current BCO 32-19 is sufficient as it stands today, prescribing as it does that advocates must be members of the courts before whom they appear and are therefore elders of the PCA, an office “of dignity and usefulness,” men who are responsible to “be spiritually fruitful, dignified, and prudent, an example to the flock, and to govern well in the house and Kingdom of Christ.”   (BCO 8-1).  Such men, as members of our judicatories, do not pose any inherent risk to our ecclesiastical judicial system when they function as advocates, whether they be lawyers, doctors, architects, engineers, contractors, plumbers, or even pastors.  If we need special rules to exclude from advocacy some category or another of such persons ordained to service in Christ’s Church, then we have lost already.  Such men are not “professional counsel.”  They are servants of the courts in which they function.  Thus, O10 and O14 seek to “fix” a problem that is not there, and for the reasons set out below, will create new sets of problems.

What Kind of Cases?

Current BCO 32-19 prohibits “professional counsel as such to appear and plead in cases of process in any court.”  O10 and O14 propose to drop the phrase “cases of process” in favor of the broader description “cases.”  In fact, our Rules of Discipline permit a variety of classes of “cases” that may arise for consideration by our church courts: (1) “Cases of Process,” which are governed by BCO Chapters 27-37 and involve a charge, an accuser, and an accused; (2) “Cases Without Process” governed by BCO Chapter 38; (3) “Review and Control;” governed by BCO Chapter 40; (4) “References,” governed by BCO Chapter 41; (5) “Appeals,” governed by BCO Chapter 42; (6) and “Complaints,” governed by Chapter 43.  The new formulation of the proposed overtures to govern “cases” rather than merely “cases of process,” would seem to spread the net of the new attorney regulations over every species of our ecclesiastical proceedings.  One may reasonably question whether this broadened scope is truly intended or even wise.

BCO 43-5 specifically permits a complainant in complaint proceedings to either represent himself “or he may obtain the assistance of a communing member of the Presbyterian Church in America, who is in good standing, in presenting his complaint.”  The proposed amendment would prohibit attorneys and their employees (but no one else) from acting as such assistants under the prescribed regulations even if they are members in good standing of the PCA.  Inexplicably, it appears that the proposed change would not in any way prohibit or regulate the “remuneration” or “corporate resources” of such assistants who are not “attorneys admitted to the bar” or who do not work for attorneys.

The Prohibition of “Functioning in an Attorney/Client Relationship” is Unworkable

Both overtures prohibit lawyers and their employees from serving when they are “functioning in an attorney/client relationship.”  But, formally speaking, employees of a law firm who are not lawyers never function in an “attorney/client relationship” because they are not attorneys.  Moreover, whenever a lawyer (or a non-lawyer employee) is representing someone in an ecclesiastical case he is, by definition, not “functioning in an attorney/client relationship” because no license to practice law is required to represent a person in an ecclesiastical case, and representing or assisting a person in an ecclesiastical case is, by definition, not the practice of law.  Therefore, by definition, a lawyer is not “functioning in an attorney/client relationship” when he is representing a person in an ecclesiastical matter.  This yields the underwhelming result that, on their face, this aspect of the proposed overtures regulates nothing at all.

On the other hand, if what is intended is to prohibit, for example, a Ruling Elder lawyer who has ever had (or currently has) an “attorney/client” relationship with the party he represents in an ecclesiastical case (e.g., he prepared or is preparing his pastor’s estate plan and therefore has an “attorney/client relationship” with him), then this rule is simply misguided.  Why should a Ruling Elder lawyer be prohibited from representing his pastor in an ecclesiastical case because he made a will or performed some other legal work for him?  Such a rule is manifestly unfair, unreasonable, and prejudicial.

And what if a lawyer Session member were representing his pastor in a criminal sexual assault case arising from allegations by a church member?  By what biblical principle should the same elder lawyer be prohibited from “appearing on behalf of,” “assisting with oral or written arguments,” or “engaging in communications regarding the case” of his pastor’s parallel ecclesiastical proceedings merely because the elder lawyer has an “attorney/client relationship” with his pastor?  Indeed, the actions of an incompetent non-lawyer representative in the ecclesiastical proceedings could lead the pastor into criminal legal jeopardy in the secular courts, even when he was in fact innocent of the charges.

The Prohibition Against the Representative Being “Remunerated in Any Form, Including, But Not Limited to, Fees, Billings, Reimbursement, or Other Non-monetary Compensation” is Unworkable. 

I see no biblically based principle supporting why such compensation should be prohibited.

If the accused buys his representative (lawyer or otherwise) dinner or gives him a Starbucks gift card for his efforts, is that prohibited?  How about if the accused lets the representative and his wife stay for a week in his condominium at the beach?

What if the attorney elder representative was temporarily impoverished (because he had to give up his livelihood to help in the ecclesiastical proceedings), so the accused let the representative and his family live in his house with him?  Are we to suppose that the representative should be disqualified under such circumstances because he is being “remunerated in any form” with “non-monetary compensation?”

If the accused pays his representative money or other compensation, is that immoral?  By what biblical principle?

Do Teaching Elders who are not attorneys effectively get a “free pass” to be paid representatives compensated (as they are) as professional church officers so that arguably all the duties they undertake for the church, whether locally, in their presbytery or in the General Assembly — including their work in ecclesiastical judicial cases — are by definition part of their paid work?  Why is compensation for some ecclesiastical work — like that of the pastor – laudable, but compensation for judicial ecclesiastical work so dangerous and reprehensible that it must be prohibited?  And if so, how can we ever allow any paid Teaching Elder to serve in a judicial matter because, by the strange apparent logic at hand, he is merely beholden to his paying constituency and is collecting unseemly mammon for his ecclesiastical work in a judicial case? For example, if an accused wants his pastor to represent him in his ecclesiastical case, how could it possibly be said that the accused is not remunerating the pastor “in any form?”  Must the accused suspend paying his tithe during the case? And by what defensible principle should the sums the accused has already paid as a tithe, and which were used for his minister’s salary be exempt from consideration as a form of “remuneration?”

What is the biblical justification for the prohibition of remuneration “of any kind?”  Not only is this proposal not reasonably policeable, but it would also be indefensible to suggest that favors “in any form” cannot be given to a representative.  It runs contrary to the most basic principles of fairness to suppose that all remuneration “of any kind” is prohibited and is not supported by any apparent Scriptural rule.

The Prohibition of a Representative Being Engaged in a “Pro Bono” Case is Unworkable.  

First, why would we even care if the case was truly a “pro bono” case?  That just means the lawyer is getting no remuneration and is serving the “public good.” What therefore would be the justification for the prohibition?

Secondly, while I have not studied the matter, I doubt that lawyer pro bono hours can necessarily be fulfilled by serving in an ecclesiastical case, since serving in an ecclesiastical case is not the practice of law, as noted above.

The Prohibition of the Representative “Otherwise Utilizing Corporate Resources” is Unworkable.

Incidentally, the adverb “otherwise” assumes that all the preceding proposed prohibitions are aspects of “corporatism,” but that is not evident in any way.  Neither being a lawyer nor being compensated for services has anything inherently to do with being a “corporation” or using “corporate resources.”  Indeed, corporations cannot be lawyers because corporate entities cannot obtain a license to practice law; only individuals can.

This prohibition seems to express nothing more than a reflexive aversion to “corporations,” whatever that might mean.  For example, if the representative’s law firm is a classic partnership (and therefore not a corporation) will that mean he can, with impunity, use all his business’s “resources?”

What if a lawyer representative forms a partnership (as opposed to a corporation) specifically for the purpose of taking on an ecclesiastical case?  Will that evade the limitation?  The partnership is not a “corporation” after all!

If the law firm is a “Professional Association” or a “Limited Liability Partnership or a “Limited Liability Company,” will that make it a “corporation” for purposes of this limitation?  Is a professional association composed of one lawyer (who barely makes enough income to pay his bills) prohibited from using his “corporate resources” in the ecclesiastical representation?  What if he had one partner?  Would that be prohibited?  Three partners?  Four?  At what point exactly does a lawyer’s business form become a “corporation” with “corporate resources?”  Is the one- or two-man firm prohibited from using his work computer to read an email about the case — that’s a “corporate resource” after all?  What if he uses an office pen or notepad to jot down a message or a provision of the Book of Church Order? He’s using “corporate resources!” What if the lawyer is working for a 150-attorney law firm?  Does the use of his “corporate” pen and legal pad make any substantial difference than if it was a firm of two lawyers?

And why should this prohibition be limited to lawyers?  If the representative is an accountant who works for a corporately formed accounting firm, are we to suppose that he can, with impunity, use his “corporate resources” to help demonstrate that his pastor is not guilty of embezzlement?  Or can a contractor who operates in the corporate form and wants to use the corporation’s copier or computer safely do so while representing a church member in an ecclesiastical case?  Under the instant proposals, only a lawyer or someone who works for a lawyer is prohibited to use “corporate resources.”  Strangely, accountants, contractors, and any other non-lawyer can use all the “corporate resources” they want under the proposals.

Perhaps most strikingly, pastor representatives are permitted under the proposals to use church copiers, computers, pens, or notebook paper even though we know most PCA churches are incorporated, and therefore every time that the pastor advocate works on the case from his church office, he is using a “corporate resource.”  A pastor’s use of his church’s “corporate resources” is, without further explanation, perfectly acceptable under the proposals if he is not an attorney.

Limiting Representatives to Any Communing Member of The Court of Original Jurisdiction is Ill Advised 

O10 states: “Representatives for either party shall be any communing member of the same particular church if before a Session, or before any other court, any communing member of the court of original jurisdiction…”

There is no sound reason to limit the representative to be a member of the court of “original jurisdiction” in a higher court.  That would mean, for example, that a man who was represented by an elder in his church before his Session would not be able to utilize a member of Presbytery on his appeal.  There is no reason for that limitation at all, and in fact it is prejudicial to the cause of fairness since the accused may need the assistance of a man who is more familiar with, competent, and respected by the Presbytery, and who better understands the Book of Church Order.  This rule would limit the representatives to men from the accused’s own Session, which in some churches might be a mere one or two men, perhaps even men who are not competent or familiar with the rules of ecclesiastical discipline. Furthermore, in some scenarios these men may be prejudiced against the accused, for perhaps they convicted him of the offense at issue in the first place, but now, by the unbending rule proposed, these same men that convicted the accused are the only men even qualified to represent him in the higher courts should the accused think the result they reached was unjust. This is not a reasonable procedure likely to produce the best results.

O14’s Proposal to Grant Discretion to Sessions to Request a Representative for the Accused from Its Presbytery is Ill Advised.  

O14 states: “If the Session judges that a party will not be well-served by representation from that body, the session may request a representative from its presbytery. The presbytery shall not approve such a representative without concurrence from both the party and the Session.”

Again, this appears well intended, but is probably not helpful for a couple of reasons: (1) it will cause delays  — Presbyteries meet infrequently and have a hard time doing anything quickly at the pace that a disciplinary case may need and (2) the member of Presbytery is not subject to the discipline of the Session, which for the reasons stated above is not a good situation because the Session cannot really control his conduct — he is not accountable to the Session for his conduct in the representation before that very court. Moreover, the fact that the “presbytery shall not approve such a representative without concurrence from both the party and the Session,” further demonstrates that this procedure risks consuming large amounts of time, leaving the case languishing for indefinite periods.

Parity of Representation

Perhaps one impetus for these overtures is the risk of disparity of representation between parties in cases, particularly trials in cases of process where one side is represented by an experienced lawyer litigator and the other is not.  However, the risk of disparity is not best solved by lowering standards reducing lawyer involvement but by raising them, both encouraging and incentivizing church courts and the parties in disputed matters to obtain the most skilled elders to manage the matter at hand.  In some cases, the best persons to serve the courts in their work will be Ruling Elders or Teaching Elders who happen to also have legal training.  And in those cases where there is a disparity of the quality of representation, whether with elders who are also lawyers or otherwise, we should presume our church courts, by God’s grace, will act with wisdom and integrity to discern the truth in matters coming before them, seeing past any apparent advantage or disadvantage posed by the skill level of one side or another in a case of process.  Disparity of the quality of representation is, after all, a risk in any proceeding, whether lawyers are involved or not.  We do not expect the elders serving as judges in our church courts to be hoodwinked by flashy advocacy, whether from lawyer representatives or others.  When the church courts adjudicate a case, we expect that they will remain impartial arbiters of the truth.  We also expect that the Ruling and Teaching Elder representatives, whether lawyers or otherwise, as members of such courts will advocate honorably, always subject of course to the discipline of the church courts in which they appear.  In the end, we trust in the Lord to help the church courts to see clearly and to deliberate carefully and fairly, and that the Lord will use the proceedings, however imperfect, to open the truth and preserve right judgment in His Church.

Conclusion

These proposals implicitly disfavor lawyers and favor non-lawyers as if lawyers are less qualified to serve or are suspect. The proposals make no effort to eliminate compensation or corporate resources from representatives who are not lawyers.  Indeed, it regulates only a “professional representative (attorney admitted to the bar or employee of a law firm),” thus limiting the very scope of regulation in the text to lawyers and lawyer employees.  These provisions are discriminatory on their face to brothers in Christ in the PCA who happen to be lawyers or who happen to work for them.

Many Presbyterian lawyers are officers in the Church of Jesus Christ, and such lawyers have long and well served the PCA.  Ruling Elder lawyers were both present and guided our denomination’s founding.  Such Ruling Elders serve their communities in an honorable profession and are competent to serve in ecclesiastical cases. They are as competent (sometimes more competent) and helpful to the cause of ecclesiastical discipline and the glory of Christ than many Teaching Elders and other officers who lack legal training and skills to present evidence and help make judicial proceedings efficient, fair, and comprehensible.  Our book should not single them out by profession for separate treatment.

These overtures have the outrageous practical effect of chilling the participation in ecclesiastical proceedings of PCA officers who happen to be lawyers, serving the very courts in which they are members and in the very type of matters for which they are specially gifted and trained.  This proposal is not only prejudicial to such brothers, but also detrimental to the Church.

For all these reasons, we should keep BCO 32-19 as it is.

Jim Eggert is a Ruling Elder in Westminster Presbyterian Church (PCA) in Brandon, Fla.