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  Prior Suit May Signal Fate of Cases against Ga. Megachurch Pastor

By Andy Peters
Law.com
October 1, 2010

http://www.law.com/jsp/article.jsp?id=1202472830757&Prior_Suit_May_Signal_Fate_of_Cases_Against_Ga_Megachurch_Pastor

Despite the flurry of news reports about them, the suits alleging that DeKalb County, Ga., megachurch pastor Eddie Long coerced young men into sexual relationships are in the earliest stages of litigation.

But some clues about how the cases may fare in the legal system can be found in the matter of the late Earl Paulk, who led a different DeKalb megachurch and also was accused in DeKalb County State Court by a former congregant of sexual coercion.

As in the Long cases, Paulk's accuser was over the age of consent by the time the alleged relationship occurred, so child sex laws were not an issue.

As in the Long cases, the claims made against Paulk are based on sections of state law requiring spiritual advisers to act in good faith with congregants with whom they share a confidential relationship.

Most importantly, a state Court of Appeals opinion issued last year in the Paulk case -- a decision that relied in part on a state Supreme Court case about a lawyer who had an affair with his client -- shows how Georgia courts view such claims.

The appeals court ruling overturned a trial court's finding that the claims against Paulk were so frivolous as to merit a $1 million award of attorney fees to the defendants. Judge John J. Ellington wrote for a three-judge appeals panel that the claims were justiciable and that a plaintiff can recover for breach of fiduciary duty when a confidential relationship is abused for purposes of sexual gratification.

At issue were claims by Mona Brewer saying that Paulk, bishop of the Cathedral of the Holy Spirit, previously known as the Cathedral at Chapel Hill, abused his role as her spiritual adviser to force her into having sex with him during a 14-year-long affair. Brewer and her husband, Bobby, sued Paulk.

The case, against Paulk's estate, church and corporate entities, is awaiting trial.

"There was evidence that Paulk was so situated as to exercise a controlling influence over the will, conduct, and interest of another," wrote Ellington, who was joined by Chief Judge M. Yvette Miller and Judge G. Alan Blackburn. "Thus, whether Mona Brewer consented to the sexual relationship would be irrelevant when Bishop Paulk was, by virtue of his confidential relationship, in a position to manipulate her into giving that consent."

The Brewers, therefore, would be allowed to state a claim of breach of fiduciary duty, Ellington said in the decision, Brewer v. Paulk, No. 296 Ga.App. 26, 673 S.E.2d 545.

The argument that attorney B. J. Bernstein is making on behalf of the four plaintiffs in the Long cases is "exactly the same legal argument" that attorney Louis Levenson said he made at the trial level in the Paulk case.

While the Court of Appeals opinion "didn't set any new standard," according to Levenson, the opinion did "articulate existing standards that had been out there for a long period of time."

Bernstein declined to comment.

Long has vowed to fight the suits. His lawyer, Craig A. Gillen, said he was not familiar with the details of the Paulk case.

"It has been my longheld personal and professional view that litigation matters should be tried in the courtroom and not through the media," Gillen said. "I believe that the State Bar rules are very clear on this, and it is the intention of Bishop Long's trial team to adhere to those rules in spite of the conduct of others."

SIMILAR CASES

Levenson elaborated on the similarities between the Paulk and Long cases.

According to the four complaints filed in DeKalb State Court, Bernstein argues that Long was in a confidential relationship with and served as a spiritual advisor to the four plaintiffs, pursuant to O.C.G.A. 24-9-22. Because of that position, Long was in a position to "exercise a controlling influence over the will, conduct, and interest" of the young men, pursuant to O.C.G.A. 23-2-58.

Bernstein alleges that Long, by engaging in sexual acts with the plaintiffs, breached his fiduciary duty, committed negligence and fraud, inflicted emotional and physical pain and committed other violations. Bernstein also argued the New Birth Missionary Baptist Church failed in its duty to warn the congregation members about Long.

The similarities with the Paulk case are obvious, Levenson said. The Brewers argued that Paulk had a confidential relationship with Mona Brewer due to his position as her pastor; that he abused his position as her "spiritual counselor" and his "self-proclaimed spiritual authority" over her for the purpose of his own sexual gratification, resulting in a breach of his fiduciary duty.

"It is difficult to establish this kind of claim, but when you are a member of the church and someone is your pastoral advisor, with whom you enjoy their confidence, that encourages people to open up with members of the clergy to get consolation and guidance," Levenson said, speaking of both the Paulk and Long cases. "But if you establish that relationship and that someone exploited that relationship, it becomes actionable."

Levenson also pointed to a 1994 state Supreme Court case that Ellington cited in the Paulk opinion, Tante v. Herring, 264 Ga. 694, 453 S.E.2d 686.

In the Tante case, a husband and wife, Laura and Bobby Herring, sued a Columbus attorney, T. Edward Tante IV, who had been pursuing a disabilities benefits claim on behalf of Laura Herring. The Herrings said that Tante took advantage of confidential information he had obtained from Laura Herring in the attorney-client relationship and used that information about her emotional condition to coerce her into having an affair with him.

The Supreme Court's opinion, authored by then-Chief Justice Willis B. Hunt Jr., upheld the Court of Appeals' opinion in favor of the Herrings' claim that Tante breached his fiduciary duty arising out of his attorney-client relationship.

(The Supreme Court reversed the Court of Appeals' holding that Tante also committed legal malpractice. In a separate action, the high court suspended Tante's law license for 18 months. Neither Frank J. Beltran, attorney for the Herrings, nor Tante's attorney, John W. Denney of Columbus, could be reached to discuss the case.)

In the high court opinion, Hunt wrote, "The Herrings' claim is based on Tante's alleged misuse, to his own advantage, of confidential information in medical and psychological reports concerning Mrs. Herring obtained in and solely because of Tante's representation of her."

Levenson said this week, "The Tante case is one of the cases that comprise the controlling case law" for these types of sexual abuse claims against clergymen, attorneys, physicians or other people in a position of authority in a relationship with a client, patient or congregation member.

"Tante is one piece of the appellate decisions over the last many years that talks about the right of plaintiffs to bring civil claims against members of the clergy for exploitation."

The Court of Appeals opinion in Brewer v. Paulk also addresses the concept of consent, which could be an issue in the Long cases, Levenson said. If attorneys for the Paulk defendants argue that Brewer consented to the sexual relationship, Levenson said he will point to the Court of Appeals opinion which says that "consent cannot be freely given if the consent is based on some misrepresentation or duress or threats."

Bernstein could make a similar argument on behalf of her clients in the Long case, and that she could point to the Brewer v. Paulk opinion for support, Levenson said.

GOING FORWARD

The Paulk case remains active, although it has taken a convoluted path to its current status.

The case was filed initially in DeKalb County Superior Court, then withdrawn and filed in DeKalb County State Court.

But in Superior Court, Judge Mark Anthony Scott ordered the Brewers and Levenson to pay $1 million in attorney fees for filing a frivolous action. Scott concluded that the Brewers' suit completely lacked any justiciable issue of law or fact because Brewer had had other pastors and did not have a clergyman/congregant relationship with Paulk, and that Paulk did not exert a controlling influence over her will.

Scott awarded attorney fees in an unapportioned lump sum directly to the Paulks' attorneys.

Levenson filed an interlocutory appeal of Scott's decision, saying that he did make a viable claim against Paulk and contesting the decision to award an unapportioned lump sum directly to opposing counsel.

On appeal, the Brewers were represented by former Court of Appeals Chief Judge Marion T. Pope Jr., John F. Salter Jr. and former Gov. Roy Barnes (who has been discussed in the Long case because the pastor is a supporter of his current campaign).

The Court of Appeals reversed the $1 million attorney fee order on those claims and vacated the remainder of Scott's order because he did not apportion the award with respect to specific claims. The Court of Appeals remanded the case to the lower court for a hearing to apportion the fee award.

Marietta, Ga., attorney Matthew M. Wilkins, counsel to the defendants in the Paulk case, declined to comment. In a motion for summary judgment that Wilkins filed on June 15, 2009, Wilkins argued that Paulk never served as Mona Brewer's assigned pastor and that Brewer and Paulk never had a sexual relationship in the context of formal counseling or another type of professional relationship.

Discovery in the Superior Court case has been completed and the parties await a ruling from Judge Wayne M. Purdom on Levenson's motion to compel former DeKalb County CEO Vernon Jones to submit to a deposition. That ruling is expected "any day," Levenson said, after which the parties will be ready for trial. Levenson wants to depose Jones because of his personal relationship with Paulk.

The cases filed against Long, which are before Judge Johnny Panos, are Robinson v. Long, No. 10A32028; Flagg v. Long, No. 10A32029; Parris v. Long, No. 10A32053; and LeGrande v. Long, No. 10A32104. The Paulk case active in DeKalb State Court is Brewer v. Paulk, No. 07-A-69161.

 
 

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