By Dan Barber | June 8, 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
The following position paper is written and submitted in response to RE Matt Fender’s recent piece, Making the Case against Overtures 10 & 14.
There have been mixed reactions to Overtures 10 and 14 submitted to the 50th General Assembly of the Presbyterian Church in America (PCA) by Northern New England and Northern California Presbyteries, respectively, including two pleas to reject both, one by Ruling Elder Matt Fender, and one by Ruling Elder Jim Eggert, also a member of the Standing Judicial Commission (SJC)—both of whom are vocational attorneys, which they graciously self-disclosed.
Background of the Overtures
I myself am not an attorney, though my dad desired that for me growing up. I am a Ruling Elder from Central Indiana Presbytery. And I am the primary author of both Overtures 10 and 14.
Like most overtures to amend the Rules of Discipline of the Book of Church Order (BCO), these overtures have their genesis in an actual case, Case 2022-10, PCA v. Herron, the first trial ever conducted by the Standing Judicial Commission (SJC), of which I was the court-appointed Prosecutor (the only other Assembly-level trial was conducted by the SJC’s predecessor, the Special Judicial Commission; see M17GA, 210–227). RE Fender, I surmise, was not privy to the details of this case, being outside of those proceedings—though the trial was held in-person in Indianapolis and was open to the public for observation—and RE Eggert, while a member of the SJC itself, was not on the Panel which heard the case directly. I hope that the following background and explanation will help clear up the intentions and understanding of the proposed changes for them both.
At the beginning of my assignment to the case, I inquired of the SJC and the PCA Stated Clerk’s office as to who could assist me in my prosecution of the case. The answer came down that I may be assisted by any member of the Presbyterian Church in America (PCA) in good standing. I appointed two Teaching Elders as assistants to the case and made them known to the court in my pretrial briefs.
The accused had already obtained ecclesiastical representation much earlier in the process when it began in the lower court. His defense counsel was a more than twenty-year veteran attorney and partner at a large law firm with more than 300 attorneys and 40 paraprofessionals. To complicate matters, this same law firm represented the accused in a civil lawsuit, though at the time the defense counsel was not an attorney of record (though he is now in a second civil lawsuit filed by the accused).
During the pretrial period, as the parties interacted with the court and with each other, we corresponded through defense counsel’s work email address—which I understand may be a personal choice if your company’s policy allows for it. However, I also received several communications from defense counsel’s legal assistant. I also had to log into the law firm’s portal to obtain discovery documents from the defense. To the best of my knowledge, the legal assistant is not a member of the PCA.
At trial itself, I was surprised when not only did defense counsel appear, but sitting with him at various points throughout the trial were two additional law firm employees: another partner and an associate (the defense counsel’s legal assistant was present but remained in the gallery). During the trial, they assisted defense counsel in preparing exhibits, developing strategy and questions for examination (though not directly addressing the court themselves). To the best of my knowledge, neither of these two additional assistants for the defense are PCA members. Frankly, I do not know, and the court did not attempt to ascertain, if all defense assistants were believers—in a court system which prohibits non-believers even from testifying (BCO 35-1), let alone planning and developing trial strategy. Despite my several objections, these law firm employees were allowed to “participate” during the trial so long as they did not directly address the court. The court did ask whether they were being paid by the accused for representation, which they answered that they were not.
The Goal of the Overtures
As a result of the trial and my experience therein, I believe there needs to be substantial changes to how we perform trials in the future. While I understand one case does not necessarily a precedent make, at the same time it is not as if “it’s never happened before” as opponents of these overtures suggest.
Given the debates and research I had done regarding BCO 32-19 and its history and challenges over the last three years, I believed this to be the right moment to introduce these overtures. These overtures had three goals in mind:
- To codify historic interpretation into the text itself. To date, application of this statute has largely been understood in light of the “non-binding” interpretation of the CCB and Stated Clerk’s office from the 27th General Assembly:
[Question from 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?
Response: 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.
- To protect the parity of elders (BCO 8-9, 13-1)[1] in connection with the exercise of ecclesiastical power (BCO 3-2, 3-4), wherein any elder competent in the Book of Church Order and the Holy Scriptures should be able to capably engage in his calling to represent before the courts of the Church either party in cases before it (1 Corinthians 6:1–6).
- To combine other helpful suggestions from cases throughout the years which I had researched,
and previous attempts to amend BCO 32-19. - To standardize language between 32-19 and BCO 42, which use “counsel” and “representation” synonymously, as well as to make consistent throughout where representation is appropriate and how so.
With these goals in mind, let me refresh readers of both the current text of the BCO as well as the proposed amendments, along with the rationale for each change.
Current Text of BCO 32-19
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.
Proposed Text of BCO 32-19, with Explanations (from Overture 14)
a. No professional representative (attorney admitted to the bar or employee of a law firm), in cases before any church court, shall be permitted to appear on behalf of any party, nor assist with oral or written arguments, nor 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 any 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. The Accused may be represented by counsel. Representatives for either party shall be in good standing, and may continue through appeal until the conclusion of the case.
i. In cases before a Session, a party may be represented by any communing member of that church. 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.
ii. In cases before any other court, a party may be represented by any member of that court.
A member of the Court so employed shall not be allowed to sit in judgment on the case.
Let us take each section in turn for explanation.
“No professional representative. . . .” We start by amending “counsel” to “representative”. In my final analysis, I thought “representation” to be the better word to use throughout, to reflect the spiritual function of each person: the prosecutor as the representative of the church (Ramsay, Exposition of the Form of Government of the Presbyterian Church, §164) who is opposed by the representative of the accused (or the accused himself if he waives his right to representation).
“No professional representative (attorney admitted to the bar or employee of a law firm). . . .” Here we are attempting to define what exactly constitutes “professional representation.” I take well RE Eggert’s comments on the Presbyterian history of this statute from the 1800s onward; my own research has produced the same conclusions in the matter (though I would also note the failed attempt by the 28th and 29th General Assemblies to amend BCO 32-19 to allow for remuneration to representatives). However, this is precisely why the clarification is needed. Much has changed regarding litigation in the last 200 years.
By “professional” here we mean “vocational,” that is, a person who’s daily employment is in the legal profession. This immediately excludes Teaching Elders from the scope of the proposed language. Certainly, we would never propose something which would exclude TEs from acting in our courts! Where the difficulty comes in is this: Should it be, “employee of a law firm”? What about an RE who is also a federal prosecutor? What about a paralegal associate, or a former attorney? Should it be, “a person currently employed in a legal capacity”? I am open to amendment of the language.
I submit to you, reader, that the point here is this: when an elder, regardless of his vocation, is a representative of the court, he is just that—and solely that—a representative of the ecclesiastical court. He is neither representing his firm, nor the civil magistrate. He is acting in his capacity as an elder and member of the ecclesiastical court. Generally, then, he should neither receive anything nor employ anything during the course of a case which is unavailable to other elders of differing vocation. If he wants to make copies, let him go through his church to make copies. He should manage his own evidence, not using a professionally trained legal assistant who is outside the jurisdiction of church courts, and so forth—more on this later.
“ . . . in cases before any church court. . . .” RE Eggert helpfully points out that we did not specify “cases of process” but rather the more general “cases.” This was intentional, as part of the goal was to create a helpful consistency between cases of complaint, trial, referral, and appeal. As such we kept the broader usage in the proposed overture.
“ . . . shall be permitted to appear on behalf of any party. . . .” We continue the language of the existing text regarding “appearing,” though we propose to make it applicable to both parties explicitly in the text.
“ . . . nor assist with oral or written arguments, nor engage in communications regarding the case. . . .” We continue the language of the existing text regarding “appearing,” though again here we propose to make the applicability to both parties explicit in the text. We are attempting to codify the interpretation of the CCB cited earlier that professional representatives are not just prohibited from “appearing” but also from operating within and on the case, in accordance with their previous advice, prohibiting professional representatives from preparing briefs and/or complaints, and also any “correspondence about the case.”
“ . . . when. . . .” This is a critical word. Here we are attempting to help courts define when exactly someone is acting in a vocationally professional capacity as opposed to an exclusively ecclesiastical capacity. This is critical, because, as stated earlier, it was not our intent—ever—to exclude someone from service simply because of his vocation in the legal profession. Such an act would be inconsistent both with Scripture and our Constitution. Rather, this helpful word enumerates the various conditions when someone in the legal profession is acting in a “professional” capacity and not simply operating as another elder of the court.
“ . . . when . . . the representative is functioning in an attorney/client relationship. . . .” In keeping with the CCB’s historic interpretation, if an elder is already engaged vocationally with an accused person and already in a privileged relationship, it represents a conflict of interest, especially considering how the methods of civil and ecclesiastical justice and their respective spheres of power differ (BCO 3-2; 27-1). For example, imagine the conflict a defense representative might face when advising a client who is also facing criminal charges: does he encourage him to “from the heart, sincerely, freely, clearly, and fully,” speak “the truth, and only the truth, in matters of judgment and justice” (WLC 144), or might he advise him elsewise for fear of creating criminal liability, and out of his obligation to zealously represent his client before the civil magistrate? The Church should avoid putting its officers in such a position.
“ . . . when . . . the representative is remunerated in any form, including but not limited to: fees, billings, reimbursement, or any other non-monetary compensation. . . .” Historically, contrary to RE Eggert, it has been the understanding of the courts of the PCA that part of being a “professional representative” is being compensated for such work. As noted, the SJC inquired as to whether defense counsel assistants were being paid for their work.[2]
And again, in our case, I believed there to be an inherent conflict as well: the representative for the accused was also a partner with a particular interest in the outcome of the ecclesiastical case: because the ecclesiastical case would be decided prior to the civil case, it stands to reason that the outcome of the ecclesiastical would have bearing on the civil, whatever the verdict. As such, the representative had a professional interest in the outcome of the case that no other elder in our Presbytery—even in our denomination—had.
“ . . . when . . . the representative is engaged as a “pro bono” case. . . .” Whether or not a person is “billing” for his time, if an attorney or other legal professional has his law firm engage in the case as a “pro bono”—formally or informally—they have “taken on” a case that is exclusively spiritual in nature, and is limited to spheres of jurisdiction of the church courts. Imagine, again, for instance, that it was not a private law firm, but a federal prosecutor’s office, and they agreed to take on the case “without charge”—would that not be an egregious intrusion into the spiritual authority and jurisdiction of the Church by the State?
An argument was presented to me, “But Dan, law firms may have rules about taking cases and you can’t take cases unless you run them through us.” Good for them. This is not a magisterial case. They have no jurisdiction. This is a spiritual case. Take vacation and do your volunteer service with a cheerful heart. I did—I had to, because I’m not in a profession where I could just count this as “work.” Service to the Church and her courts, especially in matters like this is costly, and rightly so.
Law firms also allot funds, so I’m told, for pro bono cases, which may result in an attorney being able to reimburse funds related to the case contrary to the historic interpretation I laid out above.
“ . . . when . . . the representative is otherwise utilizing corporate resources.” This line perhaps has generated as much commentary as any other, and I admit, good points have been made. Certainly a representative (again here we are only discussing legal vocational professionals, not TEs), if permitted by his company to do so, may use his company-provided laptop for personal purposes—and make no mistake, from the company’s perspective, any service to the church is a personal purpose. Perhaps this line is unnecessary in light of wordsmithing accomplished on the whole preceding clauses. I am unsure.
But the point here is to limit the work of prosecution and defense to the officers of the Church charged with doing so. I will quote here RE Fender arguing against a different overture, “To admit witnesses into the Courts of the church (should the issue ever come up) who deny the existence of God and a future state of rewards and punishments is a bridge too far. Such a person simply has no incentive not to bear false witness, and testimony by atheists has the potential to subvert the Courts of the Church.” How much more should this apply to those developing case strategy, corresponding about the case, and developing questions for examining witnesses?
Thus ends the section describing “professional counsel” and we move on the remaining portions of the proposed amendment, which contain both elements from the existing text as well as a couple of helpful novelties.
“The Accused may be represented by counsel. Representatives for either party shall be in good standing, and may continue through appeal until the conclusion of the case.” Here we continue the text stating that the accused is entitled to, but not required to utilize, representation. After feedback, perhaps it is better here to simply say, “The Accused is entitled to representation.” Such language is consistent with the term “representation” and removes “counsel,” as is a goal of this overture. It also denotes that it is merely permissible, but not required and may be waived. The point here is that the court should not deny an accused person the right to representation when it meets the requirements of the church.
We add the language of “being in good standing” which is employed elsewhere in the BCO, simply for clarity’s sake—I am not aware of when such has been an issue, but it certainly is not unforeseen.
We also add, as has been noted by many, that ecclesiastical representation which begins in a lower court may continue through the higher courts until the conclusion of the case. This is a helpful novelty and protects the rights of both parties, though I imagine that this would likely most apply to the representative for the accused.
“i. In cases before a Session, a party may be represented by any communing member of that church. 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. ii. In cases before any other court, a party may be represented by any member of that court.” This, again, is an addition, and while we think it helpful, we do not think it is a reason to abandon the rest of the proposed changes. Put simply, Sessions, being the lowest-grade court (BCO 10-1; 11-4), and typically the smallest in size, may find it difficult to accomplish a trial. Indeed, Session trials may occur less often than Presbytery ones. However, it has occurred, and you can find references in Minutes of past General Assemblies. This addition simply gives a Session the right to ask for help in securing representation for either party in a case.
I will admit, here it may be helpful to specify that this applies only to cases of process. However, in practice many already pursue such help informally in all kinds of cases, not just cases of process: how often have Presbytery members been consulted to help on a complaint by a lower court? Or perhaps the answer is simply to refer the case (BCO 41). The suggestion by RE Eggert that such a stipulation would cause an unacceptably “unnecessary delay” in a discipline case does not seem weighty enough to ditch the proposal; a meeting for such a purpose can easily be called. In any case, we should not rush through formal discipline (nor drag it out at length, either).
We conclude this proposed amendment with the same sentence as the existing language, indicating that a member gives up his right to vote on the case by virtue of his serving as representative.
A Response to Opponents of the Overtures
My brothers REs Fender and Eggert have suggested that this overture is targeting Teaching Elders. Or that it is making vocational lawyers “second-class citizens.” I humbly respond that is not the case.
As explained above, this proposed amendment is intended to protect the parity of all elders and avoid privileging the legally-trained over those who are not. It is to protect the spiritual and ecclesiastical jurisdiction of our courts, and not intermix them with the civil and criminal spheres of the civil magistrate.
Interestingly, Dr. Morton H. Smith wrote this in his Commentary on the PCA Book of Church Order,
Professional counsel is forbidden from appearing and pleading cases in any court. The question may be asked, if one who is professionally trained, but who is not paid for his services, if he meets the qualifications of being a member of the particular church, or of being a member of the court, may voluntarily serve. The reason for this exclusion is to avoid giving one party an advantage over the other in ecclesiastical cases. The exclusion appears to apply whether or not counsel is paid. If he is by profession a legal counsel, then he is not permitted to appear for or plead a case in any church court.[3]
We do not go as far as Smith, but we understand his desire to uphold Scripture, “In the presence of God and of Christ Jesus and of the elect angels I charge you to keep these rules without prejudging, doing nothing from partiality” (1 Timothy 5:21). Being impartial not only means judging without respect to your relationship to the accused, but also to the ecclesiastical representatives. It also means that the court itself should consistently employ the same rules for both parties (BCO 32-13).
This is also in keeping with James 2:2–5 and 1 Corinthians 6:1–6. There has historically been a problem with those who are “rich” and in showing preference for those who are “rich” (in money or connections).. In the context of a case of process before the church, we must be very careful to not give in to, intentionally or otherwise, favoritism—even out of a good desire for competent representatives—because one party is better represented. Such does no justice in the eyes of our Lord and Savior Jesus Christ.
Neither are these overtures designed to make attorneys “second-class citizens”. In my case, if anyone was the “lesser brother” amongst the court, it was myself, since both the Panel chairman and Defense counsel are attorneys.
RE Fender also suggests that the restriction against utilizing “corporate resources” is problematic. I have agreed with him in part based on the language—it is difficult to put it into words here. But let’s consider the implications of what RE Fender suggests here:
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.).[4]
I pose a question to RE Fender: is it wise for an officer of the court[5] to interview ecclesiastical witnesses in his company-provided office? Again, let’s assume it’s not RE Fender. Maybe it’s a federal prosecutor . . . would that be wise? What if a Ruling Elder is a police officer—while not in scope here, I’m just using this by way of example—would it be wise for him to conduct meetings with ecclesiastical witnesses at his precinct? I suggest likely not. Just because you are able does not mean you should, and attorneys in service of civil magistrate should bear this mind, just like every elder needs to understand not only the content of what is occurring but also the connotation and context in doing so.
RE Fender also writes, “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.” And yet, as I pointed out in the beginning, this seems to be the very opinion of the CCB itself which has guided courts for the last two decades! It seems inconceivable to me that such could be the case and such an interpretation would be allowed to stand unchallenged for so long if it was, in fact, so precarious.
Finally, I do not believe RE Fender’s proposed resolution, creating a pseudo-juridicial class of ecclesiastical litigators open to all jurisdictions within the PCA, is in keeping with our constitution, nor the grassroots nature of our polity. He writes,
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.[6]
We already have a problem in the PCA when it comes to judicial competency:
- Of the 103 unique members of the Standing Judicial Commission since 1990, less than half are still active in the General Assembly (attending within the last five years).
- More than one-third of presbyteries in the PCA have never had a single representative elected to the Standing Judicial Commission.
Judicial competence—that is, both knowledge of case types, case history, and case procedures, together with actual judicial experience—is more and more being consolidated into the experience of fewer people. This not only creates more work for those people, but also more work for our courts: when more courts have less experienced adjudicators they tend to make more errors, which in turn increases the workload of the higher courts.
We do not believe the answer to be the creation of more opportunity for special vocationally-trained elders to do the spiritual work of Christ’s Church (how many Offices would we have then?). I do not believe the nature of ecclesiastical power should be vested in so few, especially when those few are not elected by the Assembly at large, but appointed de facto by virtue of their secular training.
We think rather the answer is what was said at the outset: we need an ecclesiastical process wherein any elder competent in the Book of Church Order and the Holy Scriptures should be able to capably engage in his calling to represent before the courts of the Church either party in cases before it.
A Response to the Committee on Constitutional Business (CCB)
The CCB has rendered its opinion that the proposed amendments are “in conflict” with Constitution of the PCA,. However, as I have shown above, I believe this to be based on a misreading or misunderstanding of the proposed language. We are not seeking to exclude any member of the court from his ability to fulfill his calling and serve as a representative. But rather we are proposing language consistent with the historic interpretation of the existing text, with some other additions based on recent trial experience.
Perhaps some of the language proposed is too strong or needs word-smithing; I can accept that. This is precisely the work of the Overtures Committee, and I expect it to produce a superior amendment than what our small team was able to accomplish, even after getting prior input from many expert resources. I am constantly amazed at how the Lord works in Overtures to bring brothers together to accomplish His work.
I humbly request the CCB reconsider their opinion on this by meeting during GA. I also invite REs Eggert and Fender—or anyone wishing to create better versions of this proposal—to reach out to me over the next few days to discuss. Otherwise, I will see you in Overtures, brothers.
I urge my brothers at the General Assembly, however this comes to the floor, whether by the recommendation of the Overtures Committee or by Minority Report, that you give the arguments and words listed here proper weight. This is no mere hypothetical, but rather proposed changes growing out of actual ecclesiastical experience in our own church.
God be with us all as we celebrate our 50 years of denominational brotherhood together, and until He comes again, and makes all things new in the New Heavens and the New Earth.
Dan Barber is a PCA Ruling Elder serving on the session of Fountain Square Presbyterian Church in Indianapolis, IN.
[1] Editor’s Note: For a differing perspective on the matter of protecting the parity of elders and the proposals put forward in Overtures 10 and 14, see RE Matt Fender’s piece, Making the Case against Overtures 10 & 14.
[2] Editor’s Note: In U.S. tax law, reimbursements do not count as taxable income or compensation under an accountable plan (when substantiation such as receipts are required and provided).
[3] Morton H. Smith, Commentary on the PCA Book of Church Order, 5th Edition (Southern Presbyterian Press: Greenville, SC) p. 313.
[4] Matt Fender, Making the Case against Overtures 10 & 14.
[5] An “officer of the court” is “any person who has an obligation to promote justice and uphold the law, including judges, clerks, court personnel, police officers, and attorneys (who must be truthful in court and obey court rules).” See the definition provided here.
[6] Matt Fender, Making the Case against Overtures 10 & 14.