Reprinted from

By Daniel Klaidman, Legal Times

On the day after Christmas 1980, a 12 year old boy went to visit his uncle. During the night, the uncle sexually molested him. It was the first time, but it would not be the last. During the next four years, the uncle had repeated sexual encounters with his nephew.

What makes this story even more horrifying is that the boy’s uncle is a Roman Catholic priest. And the 1980 sexual encounter took place inside the rectory of Saint Peter’s Parish in Waldorf, Md.

Today, says the boy’s lawyer, James “Beau” Brincefield Jr., the youth is deeply scarred emotionally. He dropped out of college, cannot hold a job, and is subject to periodic fits of violent rage. But most of all, he is consumed by fears of becoming a pedophile himself.

Next month, an unusual trial will begin in Montgomery County Circuit Court to determine the damages owed by the priest to the boy and his family, and, more important, to decide whether the priest’s codefendant, the Archdiocese of Washington, can be held responsible.

Although Brincefield will not say it in so many words, loopholes were exactly what he was looking for when he decided to sue the archdiocese. In some respects, he had an easy task. The priest, the Rev. Peter McCutcheon, had already pleaded guilty in 1986 to six counts of child sexual abuse, including the incident in December 1980.

McCutcheon was sentenced to 25 years in prison. After serving less than a year, he was placed on a five year probation on the condition that he be admitted to a treatment facility in New Mexico.

Although the archdiocese is hotly contesting liability, the mere fact that it continues as a defendant in the suit is unprecedented. Until now, no one has successfully brought a claim against the Catholic Church that as an institution, it is liable for “malpractice” by one of its errant priests.

The notion of clergy malpractice is an extraordinary and far reaching issue, one that ultimately engages the question of how far the courts should go in overseeing the internal affairs of a church. But the lawyers who hatched the clergy malpractice idea and the trial judge who sustained it are not the kind of people one would expect to have involved in a case with such profound implications.

All in the Family

Pressing the suit for the boy and his family is a distant relative, Brincefield, of Alexandria, Va.’s seven lawyer Brincefield, Hartnett & Associates. Primarily a real estate litigator, Brincefield, 47, has an informal style that is attractive to clients and stands in sharp contrast to the gravity of the case. The part time actor lets his dog, Loopey, scurry around the office. “Loopey” is short for “loop-hole.”

For the nephew and his parents, this sentence was not enough. Outraged by what they perceived as the legal system’s lenient treatment of McCutcheon, the parents and the boy, now 20, decided to sue the priest and the archdiocese.

Seeking the Deep Pocket

For Brincefield, the problem was not proving what had happened to his client:
About that, there was little dispute. The thorny question was how to frame a lawsuit in a way that would present a decent chance of landing a significant damage award for the young man.

McCutcheon is hardly a “deep pocket” defendant who can afford to pay large monetary damages. The archdiocese, however, is the archetype of a deep pocket defendant. Brincefield had to devise a way to link the actions of the priest with the institution for which he worked.

“Clergy malpractice, as a separate tort, has a powerful and unusual impact,” says Brincefield. “It automatically carries with it vicarious liability of the archdiocese.”

So whom did Brincefield turn to for the supporting research for the clergy malpractice claim? An unemployed 30 year old lawyer who showed up at Brincefield’s office only after his wife suggested he look for some work at a neighborhood law office.

When the lawyer, Bruce Adelson, finished his memo on clergy malpractice, he was convinced he would never work for Brincefield again. Adelson was unable to find a single case anywhere in which a judge, at any level, had permitted a clergy malpractice claim.

What Adelson did find was a 1987 ruling by a Missouri state judge that while a clergy malpractice claim did not apply to the facts before him, such a claim could exist in theory.

That was good enough for Brincefield, and Adelson’s research was good enough to land him a full time job as an associate at Brincefield’s firm.

Brincefield is typically blasé about the genesis of the clergy malpractice vehicle. “I just assumed from the beginning that such a claim existed,” he says. He adds that in his view, clergy malpractice was a fairly obvious cause of action from the start.

“In the land of the blind,” Brincefield boasts, “the one eyed man is king.”

Supported by little more than the Missouri ruling, Brincefield amended his original complaint last July to include clergy malpractice. Unless he is far shrewder than he appears, Brincefield could not have predicted the reaction of the judge in the case, Montgomery County Circuit Judge Stanley Frosh.

One for the History Books

A founding partner of what is now D.C. ’s Lane and Edson, Frosh was appointed to the bench in 1975. Like Brincefield, he has some personal quirks. Since “Frosh” means “frog” in Old English, Frosh’s chambers are decorated with an extensive collection of amphibian figurines. Occasionally witty and frequently tough minded, the judge will retire early next year when he reaches the mandatory retirement age of 70.

For Frosh, the McCutcheon case provided an opportunity many judges relish the chance to leave a mark on the law.

In a Sept. 2 ruling denying motions by McCutcheon and the archdiocese to dismiss the clergy malpractice count, Frosh said that the claim “is something that, while perhaps stretching the horizons of the law, is at least something that should be recognizable for the state.”

The judge’s willingness to accept the clergy malpractice claim and with it, the liability of the archdiocese has sparked considerable debate among First Amendment specialists. Some characterize Frosh’s ruling as a reasonable, even inevitable, application of accepted jurisprudence to new circumstances.
But other experts, like George Mason University law professor Joseph Broadus, say Frosh’s ruling, which treats the archdiocese like any other employer responsible for the actions of its employees, is a dangerous encroachment on the free exercise of religion.

“Lawsuits such as this force churches to structure themselves in ways that do not allow them to fulfill their mission,” Broadus says. “The structure of churches is an area in which the government has no legitimate concern, and once they get involved, there’s no reason to believe the government will know how to define the limits of its involvement.”

Defining “Standards of Care”

Although Frosh’s decision permits Brincefield to press the clergy malpractice issue in next month’s trial, Brincefield still faces several daunting challenges in his effort to hold the archdiocese liable. The lawyer must establish that McCutcheon, through his sexual abuse of children, violated the standards of care that the archdiocese is responsible for ensuring that each priest follow.

For Brincefield, defining that standard of care is relatively easy. As he noted during oral arguments before Frosh in September, “Clearly, at the minimum, a Catholic clergyman has the obligation to interpret the church’s position honestly and accurately on matters of faith and morals . . . There is no question but that Father McCutcheon, if our pleadings are true, breached his obligation by telling (the child that the conduct he wanted him to perform was condoned by the church, was proper, was acceptable, was not immoral, was not counter or contrary to the teachings of the church.”

At the oral argument, Brincefield went on to contend that not only was McCutcheon acting within his scope of authority as a priest when he committed the acts of sexual abuse but that they were facilitated by “the job created authority given to Father McCutcheon when the Catholic Church decided to put the Roman collar on his neck and the cassock on his back.”

The church, Brincefield claimed, should be held responsible when one of its priests misuses the authority the church granted him. The plaintiff’s lawyer declared, “The reason why Father McCutcheon was able to injure and damage this boy is because he was a priest.”

Brincefield’s contention that it was McCutcheon’s position as a priest that facilitated his abuse of the boy is sure to he a major battleground during the trial. The archdiocese, through its regular counsel, James Reilly of D.C. ’s Interdonato, Reilly & Comstock, will contest this claim. arguing that McCutcheon’s ability to abuse the boy was not enhanced because he is a priest, but because he is the boy’s uncle.

Reilly declines to discuss the McCutcheon case in detail but does say, “The thing you have to remember is that this priest is the boy’s uncle.”

In a case where few facts are straightforward, not even the uncle nephew relationship is typical. The boy’s grandfather adopted the future priest, so McCutcheon is not the boy’s blood relative.

While the archdiocese may emerge from next month’s trial unscathed, it is clear that McCutcheon will not. His life was shattered by the criminal conviction, and Frosh has already found him liable in the civil suit.

McCutcheon refused to permit church counselors and fellow clerics to testify about therapy sessions they had with him. Because of his non-cooperation, Frosh entered an order of default against the priest.

As the case has evolved. so has McCutcheon’s defense team. The priest was initially represented pro bono by Mary Clarke, a lawyer with the Environmental Protection Agency, who worked on the suit on her own time. Clarke first met McCutcheon through one of her other pro bono endeavors, the representation of tenants in a dispute with their landlord at a housing project near McCutcheon’s parish.

But once Frosh upheld the clergy malpractice claim, McCutcheon picked up additional legal firepower. Shortly after the judge’s September ruling, Clarke urged the archdiocese to hire another lawyer to do the bulk of the work for McCutcheon’s defense. The archdiocese’s insurer agreed and selected Clarke’s first choice for the job Albert Brault, 54, of Rockville, Md.’s Brault, Graham, Scott & Brault.

Brault is considered one of Maryland’s leading medical malpractice lawyers for both plaintiffs and defendants. Clarke says she first learned about Brault when she saw him argue a case in court. “I saw him in court one day, and I said to myself, ‘This is one helluva trial lawyer.’

Brault holds no illusions about the scope of his role. ”I was brought in to handle the clergy malpractice claim,“ he says. ”It is a clear violation of the First Amendment for the courts to establish the standard of care that McCutcheon allegedly breached. The courts are not competent to do that.“

Lost in all the lofty and legitimate discussions of the First Amendment, however, is the trauma suffered by a boy eight years ago. He is a victim, and now the courts are being asked to find some way to relieve his suffering. While Brincefield will surely make heart tugging arguments to the jury next month, for the moment, he seems more impressed with his exercise of legal jujitsu.

”The clergy malpractice claim,“ says Brincefield with obvious excitement, “devastates the ability of the employer to avoid liability. It’s clean. It’s deadly.”

Reprinted from Legal Times, Volume XI, No. 19, October 10, 1988.