SBC Executive Committee Waives Attorney-Client Privilege, But Some are Concerned

The Southern Baptist Convention Executive Committee (EC) has voted 44-31 to waive attorney-client privilege and allow Guidepost Solutions, the firm charged with overseeing “any allegations of abuse, mishandling of abuse, mistreatment of victims, a pattern of intimidation of victims or advocates, and resistance to sexual abuse reform initiatives.” within the denomination, to have full access to what normally would be privileged communications between committee members and their lawyers.

SBC President Ed Litton, himself embroiled in a scandal involving his repeated plagiarism over a period of years, ironically prayed that the Lord would expose “what needs to be exposed” while adjuring that these events would not ‘divide and separate brothers and sisters.’

Last week, the motion failed 22-50 to waive attorney-client privileges, and since then a campaign was mounted to give the hard press to members who desire to address sexual abuse cases but were concerned that the decision would open the convention up to lawsuits and financially devastate the denomination to the point of insolvency. Over 1000 pastors signed a letter urging the convention to reconsider, resulting in a scrum that was being framed as between those advocating for fiduciary vs spiritual duties.

Louisiana pastor and Conservative Baptist Network Steering Council member Lewis Richerson disagrees with how this has been presented, saying that the two are not mutually exclusive.

“Those supporting the waiving of attorney-client privilege were superb in their rhetoric so as to create a perception that those who had genuine concerns and believed other options were readily available to fulfill the desire of the messengers were guilty of seeking to cover up sex abuse, harm sex abuse survivors, and/or desired to reject the will of the messengers. Many conservatives were hesitant to speak up for fear of being labeled and due to the confusion surrounding the situation. We desire truth and integrity and believe both of those could be accomplished without waiving attorney-client privilege.”

Naturally, with all this talk of openness and access to information and records, some have pointed out the naked hypocrisy of the Executive Committee and other SBC entities with their selective insistence on full transparency when it comes to this matter, all the while keeping information like the salaries of their top people and leaders a secret, with no one knowing how much are being paid despite being corporately funded by the churches.

Rhett Burns (@rhiett_burns) offers up these somewhat dissenting thoughts about the waiving of privileges while Pastor Bill Kent expressed concern over whether or not every messenger fully understood all the ramifications of facing legal jeopardy without counsel. Burns writes:

Enough accusations have been made against the ExComm to warrant an investigation, & the messengers were right to direct such. That’s why it is so disappointing and frustrating that they’ve managed to botch this thing before it’s even started In a time where trust is lacking in every area of our convention, leaders have pushed for this investigation in ways that undermine trust and threaten the legitimacy of its findings.

What do I mean? 

1)The presenting impetus for the investigation were two letters from Russell Moore that were obviously written to be leaked, which they were. That one of the letters implicates Moore and the ERLC in abuse coverup has been ignored, and we are supposed to just ignore that inconvenient fact. 

2)The motion messengers passed actually directed the task force, not the Executive Committee, yet, that fact has also been ignored. Instead, the prevailing narrative is that the EC is flouting the direct will of the messengers by not waiving attorney-clicent privilege. 

3)Even if you interpret the motion to direct the EC, it is not at all clear that the messengers have the authority to require the EC staff and members to waive basic legal rights. Rather, it seems to be an overstepping of authority to attempt to mandate such. To respond with indignation and outrage that someone did not comply with your directive that you did not have the authority to make, is itself an abusive tactic. 

4)Saying things like “if you have nothing to hide you’ll waive privilege” or “if you don’t waive privilege you must be guilty” is to assume what you are trying to prove, & to treat someone as guilty until proven innocent. This is a perversion of justice in the name of justice.

5)Still, you may think, “why are they hiding behind a legal privilege? They have a moral duty to be transparent.” I largely agree. O, that we would have transparency and accountability in the SBC! (Any chance we can see salary structure for entity leaders?) 

But the EC was not the first to lawyer up. Those pushing for the investigation came with lawyers. A motion was made from the floor to have qualified pastors/men in the church investigate the EC (in accordance with 1 Cor 6), but that was rejected out of hand, so we’re left with the lawyers and those pesky legal rights, like attorney-client privilege, that due process ensures. 

6)The task force was given authority by the messengers to oversee this investigation (carried out by a third party) but we have a task force member on the speaker list of a strategy session discussing the removal of Ronnie Floyd and several trustees. Remember, the investigation has not even started yet, but they are guilty and must be removed! (and maybe they should be, but shouldn’t the investigation demonstrate this first?) Another task force member signed an open letter to the EC threatening to pull funding if they don’t waive privilege.

Further, the task force contracted, for a legal opinion in an investigation about sexual abuse, a law firm that boasts about promoting& defending sexual deviancy. There is not even a pretense of objectivity.

It’s all gaslighting.

If you notice any of this—and say something out loud about it—you are the baddie. Now, assuming the best of people, I’m sure many pushing hardest for waiving privilege just want the truth to come out. And some of them probably have some inside info that I don’t have that implicates some EC staff or members. I get it. But ask any grandmother teaching Sunday School and she’ll tell you: two wrongs don’t make a right.

*How* we do this investigation is important.

We must not jettison justice in the pursuit of justice. Doing so only adds to the number of victims rather than bringing healing and justice to any of the current victims. Thus far, this investigation appears to be operating according to the politics of power rather than the principles of justice.

That’s a shame.

And it further erodes what little trust remained. “You reap what you sow.”

Maybe this is just Patterson reaping what he sowed years ago. I don’t know.

But if so, it ought to make the current crop tremble.

“With the measure you use it shall be measured to you.”

May the Lord show mercy to all of us. 

Executive Committee member Rod Martin, who voted ‘No’ was likewise concerned about the way this was being framed, explaining:

“It was perfectly possible to comply with the will of the messengers and still fulfill our fiduciary duties. The fact that the majority did not wish to do so will haunt the SBC, and not just the Executive Committee or its members: every entity, every state convention. But even were that not manifestly true, it remains true as I warned for weeks: by voiding the insurance, the Executive Committee has very limited ability to compensate any victims the investigation might find. This is grossly foolish and unjust: it is the ‘be warm and be filled’ motion. It is certainly not ‘caring well.’”

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