This Note argues that clergypersons who offer religious guidance are fiduciaries in some limited circumstances and therefore liable for sexual contact that occurs between them and congregants. This Note will argue that clergypersons are most properly deemed fiduciaries through a fact-based definitional approach. As such, this Note departs from previous arguments that clergypersons are fiduciaries because they provide services analogous to secular counselors. Prospective fiduciary relationships involving clergy should be analyzed using a distinct conceptual account of fiduciary relationships rather than an analogical analysis based on apparent similarities between a clergyperson and other fiduciaries. Such an approach is preferable to the argument by analogy because it can better explain why clergypersons who offer no formal mental health counseling, but only religious guidance, are nevertheless fiduciaries.
Fiduciaries in Priest's Clothing: Clergy Sexual Abuse and Fiduciary Duty,
Nw. U. L. Rev.