Presbyterian Polity

By Matt Fender | June 2, 2023

Please note that the Editorial Board of Presbyterian Polity does not necessarily endorse all views expressed on the blog of this site, but the editors are pleased to present well-crafted position papers on issues facing Presbyterian churches and denominations. What follows is one such paper for our readers’ consideration. ~ The Editors

What is the proper intersection of lawyers and the courts of the Church?  With the 50^th General Assembly of the Presbyterian Church in America (PCA) fast approaching, there are two overtures that seek to amend Book of Church Order (BCO) 32-19 to restrict the ability of those who are lawyers in their civil vocation to participate in the courts of the Church. These are Overtures 10 and 14, submitted by Northern New England and Northern California Presbyteries, respectively. It is the purpose of this article to argue that these overtures as written should be rejected and that, if anything, greater liberty should be afforded to allow church members who are skilled in legal advocacy to participate in PCA judicial proceedings.

In the interest of full disclosure, I am a ruling elder in the PCA, and in my civil vocation, I am a lawyer.  I have a law degree.  I am licensed to practice law in two states and in a number of federal courts.  I have been working full-time as a lawyer for just shy of fifteen years.  My practice consists almost entirely of commercial litigation, and I hold myself out as a trial lawyer.  I am a veteran of numerous trials and arbitrations, and I have long ago lost track of the number of depositions, hearings, and other similar proceedings in which I have represented clients.

That has little to do with the courts of the Church.  My admission to the bar of one or more civil courts does not in any way qualify me to act as an advocate in the court of the Church, nor should it.  But it does mean that I have a very particular set of skills that is at times useful to the Church.  I can serve Christ’s church with those skills in a way that another elder cannot do in quite the same way, and perhaps not quite as effectively.  I know how to draft pleadings, put on evidence, cross examine a witness, and make a closing argument.

Chapter 32 of the PCA’s BCO is entitled, General Provisions Applicable to all Cases of Process.  Paragraph 19 of Chapter 32 specifies the rules for who may act as counsel in a case of process.  To be clear, a case of process arises when charges have been brought in a court of the Church against a member.  The court appoints a prosecutor, and the accused is entitled to defense counsel.  Here is what it says:

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 first clause, “No professional counsel shall be permitted as such to appear and plead…” is clear enough.  The fact that someone is a professional lawyer does not qualify him to appear in the courts of the Church.  But it also does not disqualify someone from so appearing merely because he is a professional lawyer.

The remainder of BCO 32-19 sets out the requirements an advocate must meet.  If the proceeding is held before a particular Church’s session of elders, any communing member of that particular Church may appear.  If the case is before “any other court,” which presumably includes a presbytery or the General Assembly, then “any member of the court” is qualified to appear.  This seems to be liberally interpreted with respect to the PCA General Assembly’s Standing Judicial Commission (SJC), as elders who are not on the SJC are routinely permitted to appear and to advocate.

The proposed language of Overture 10 (Overture 14 is substantially the same), would delete the existing language of BCO 32-19 and replace it with the following:

32-19. a. 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.

b. 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 (BCO 11-4) and may continue through appeal until the conclusion of the case. A member of the court so employed shall not be allowed to sit in judgment in the case.

c. Representatives for either party may appoint assistants according to these same requirements.

There are several serious problems with this proposal, and it should be rejected. But note that there are two components of the proposed change worthy of favorable consideration.

There are parts of proposed subparagraphs (b) and (c) that have merit.  The proposed language in (b) that counsel “may continue through appeal until the conclusion of the case,” is laudable.  At present, a member, deacon, or ruling elder who is a defendant in a case of process can be represented before the session by any member of the church, but if he appeals his case to the presbytery and perhaps the SJC, then he cannot keep the same counsel unless his counsel is also an elder.  The proposed change would be an improvement. In addition, the proposed subparagraph (c) providing that: “Representatives for either party may appoint assistants according to these same requirements,” would be a good addition to the BCO in that it codifies the current practice of appointing assistants to both prosecutors and defense counsel.

Notwithstanding the good that is present in subparagraphs (b) and (c), there are serious problems with the proposed amendment as a whole.

First, this language – if incorporated into the BCO – would have the effect of making elders (i.e., representatives of the parties named in a case) who are also lawyers into second-class elders. What do I mean by such a strong statement? Under the language of the proposed amendment, elders who work as lawyers would be subject to restrictions that apply to no other elders. While most law firms are organized as partnerships and not corporations, thus rendering the term “corporate resources” at best ambiguous, the intent of this language seems to be to prevent advocates on the courts of the church who are lawyers from using the resources (loosely defined in 32-19.a.iv of the proposed amendment) of their professional offices.

Presumably, this would mean that if I – as an elder who is also a lawyer – am acting as prosecutor or defense counsel in a case, I cannot work on the case while sitting at my desk, talking on my work telephone, using my work computer, printing documents with my office printer, meeting with witnesses in my office, or otherwise doing any number of things that any other elder would be able to do in his workplace (e.g., engineering firm, restaurant, shop, school, medical practice, etc.).

Second, the proposed restriction against acting as an advocate while engaged in an “attorney/client relationship” (in 32-19.a.i of the proposed amendment) is ambiguous and fraught with peril.  The formation of an attorney/client relationship is a question of civil law.  Whether or not one is formed is an issue that is at times litigated in civil courts, and it is not merely a matter of whether the lawyer thinks he has formed such a relationship.  It can arise by operation of law.  A civil lawyer who is otherwise qualified by the current language of 32-19 to appear in the courts of the Church might very well be deemed by a civil court to have formed an attorney/client relationship with the party he is representing, irrespective of whether he wished to do so. The proposed change in language at this point will have a chilling effect on participation in the church courts by lawyers.

Third, the proposed restriction which disqualifies a representative who “is remunerated in any form, including, but not limited to, fees, billings, reimbursement, or other non-monetary compensation” (in 32-19.a.ii of the proposed amendment) would eliminate almost all teaching elders from participation as representatives in an ecclesiastical trial. A teaching elder who receives a salary from the Church is being remunerated for his service to the Church, which presumably would include any service in the courts of the Church. Involvement at presbytery and General Assembly (and for the overwhelming majority of TEs, involvement on a session), including participation in discipline cases, is part of the professional work of these elders, and the language of the proposed restriction is broad enough to eliminate them from participation.

Presumably the goal here is to keep an accused party from paying his counsel in an ecclesiastical trial. I know of no instances in which that has occurred.  This is a solution in search of a problem.

I strongly suspect that I know more lawyers than the average reader of this article, and all the lawyers I know have at least one thing in common: they are very busy. Law is a time-consuming profession, and volunteering to act as counsel in a case of process (no matter the context) is no small thing. A willingness to serve in such a way should be lauded, not reviled.

I also note that the restriction on “reimbursement” appears to prevent any representative, whether a church member, ruling elder, or teaching elder – lawyer or not – from having his expenses defrayed by a Church or presbytery. Such a restriction is simply absurd.

Fourth, the goal of Overtures 10 and 14 appears to be to prevent lawyers from advocating in the courts of the Church because someone deems it unfair that one party has a lawyer while the other party does not. One of the perambulatory clauses to Overture 10 reads as follows: “Whereas, a professional attorney may gain significant advantages over the other party in the prosecution or defense of a case of process by virtue of the corporate resources available to him.”  There is doubtless an advantage when it comes down to a trial to having a professional lawyer – or at least someone with legal training and trial experience – as your representative. But the advantage in-question is one of skill and experience. Office resources are easily arranged for, and assistants can always be called on to assist defense counsel or a prosecutor if more help is needed.

The idea of actively working to prevent those most skilled at trial advocacy from exercising their unique gifts in the courts of the Church is completely backwards. If anything, what is needed instead is to broaden the language of 32-19 to allow any member of the PCA to act as an advocate in any court of the church (as is suggested in the language of the proposed 32-19.b). Such a broadening would allow additional members who are lawyers to employ their talents and help improve access to skilled counsel to act as either prosecutor or defense counsel.

Though there are two helpful components in Overture 10’s (and by extension, Overture 14’s) proposed amendment, the liabilities far outweigh any advantages to these proposals. The current language of BCO 32-19 is vastly superior to that which is proposed in Overtures 10 and 14, and those Overtures should be rejected.

Matt Fender is a PCA Ruling Elder serving on the session of All Saints Presbyterian Church in Richmond, VA.