The SBC and Attorney Client Privilege Debacle - It's Pay Me Now or Pay Me Later

The discussion within the SBC about attorney client privilege is problematic.  Many commenters simply don’t know what they’re discussing or even why attorney client privilege matters.  I know at least one lawyer waded in and tried to explain this.  Perhaps this brief essay will help out as well.

Technical Issues

First, the attorney client privilege resides with the client and the client alone.  No one can force someone else to waive it.  My employer can’t force me to waive it.  My pastor can’t force me to waive it.  My wife can’t force me to waive it.  This means as relates to any individual EC member or EC staff, the SBC has no legal authority to require them to waive.  Case closed.  Yes, the EC can tell staff members to submit or be fired.  So the staff member says no, gets fired, and still retains the privilege and it’s still not waived.  That isn’t a way out. (I’m not saying anyone has suggested this, but just trying to nip this idea up front).

Second, the SBC can require the EC, as a body, to waive the privilege, much like a shareholders meeting could pass a resolution requiring a corporation’s board of directors to do so.  However, this isn’t the same thing as attempting to force an individual to waive.

This raises the question of which attorney communications are between the EC as a body and which are between individuals and attorneys.  The EC has a president who is presumably the focal point for all legal communications between the EC and any attorneys the EC has consulted for any reason.  If the EC president has delegated responsibility in this area, then that person’s communications on behalf of the EC should be available, as well.  This shouldn’t be too hard to figure out.  These can be waived and should be waived without fanfare.

Where it gets interesting is to demand that EC members and staff start waiving as individuals.  The problem is who was “acting for the EC” and who was simply seeking legal counsel more generally or even specifically for themselves?  The only way to ever figure this out is to have everyone waive and let Guidepost look through everything.  This is what I understand the SBC messengers approved.  However, there is no legal remedy for the SBC should any individual say no.  None.  And, yes, it’s that simple.

So the SBC ends up in its current jam, with accusations flung wildly, often without clarity or charity, against folks who likely had an attorney tell them what I just noted above.  But let’s turn to the practical issues.

Practical Implications

If an EC member or someone on the EC staff called me and asked me what to do, I would tell them not to waive until I had a chance to review their communications with their attorney.  Why?  First and most importantly because attorneys and clients often discuss very sensitive matters.  Second, and also important, communications often stray to more than one topic.  Let me give a possible example.  A pastor calls an attorney to discuss the local sign ordinance and power company right of way issues the church is facing.  Who cares if this is disclosed, right?  BUT, during the conversation, the pastor mentions  that a church member told him something in private during a counseling session that might have been a criminal act (let’s say not related to sex abuse to keep the example clean) and asks the attorney what his obligations are, if any.  Following the attorney’s advice, the pastor says nothing to the authorities and continues to counsel the church member and moves on.

Now, after waiver, the communication is provided to Guidepost.  While the EC can negotiate a non-disclosure with Guidepost, Guidepost lawyers may have a different opinion than the original lawyer and indicate disclosure of the communication is required.  Unsurprisingly,  lawyers don’t always have the same opinions. This has absolutely nothing to do with sexual abuse in the SBC but because Guidepost now knows about it and is concerned (rightly) with its own liability for failing to disclose something, it discloses to the authorities.  The member is arrested but it turns out the first lawyer was correct and nothing needed to be disclosed. The member, the church, the pastor, and the SBC all get punched in the face over something that should have never seen the light of day. 

This likely won’t happen, but the specter of something sensitive leaking out is there.  It doesn’t have to be related to sex abuse here, either. 

Of course, the naysayers will argue we can’t let legal obligations override spiritual obligations.  Isn’t a pastoral concern for a church member’s unrelated information being reviewed by some third party or, worse, leaking out, a “spiritual” concern?  Some will say pastors only rarely contact legal counsel and rarely on matters of significance.  I’m very hopeful that is correct.  I’ve had pastors and church members consult me on a variety of matters over the years and only a very few were of a highly sensitive nature.

In addition, our management of resources matters.  Concerns about insurability, as well as concerns about potential liability for the SBC matter.  While one can, rightly, argue these are secondary concerns to making sure sexual abuse matters are properly handled, the SBC executive committee isn’t charged with having committed or cooperated in any sexual abuse at any time.  In other words, the parties responsible for handling the sexual abuse issues are the local churches and local authorities involved, making the executive committee’s actions legally tangential.  If the SBC is going to start treating sexual abuse matters as a convention-wide concern, then the SBC may find itself owning sexual abuse matters convention-wide.  The SBC does not have the resources of the Catholic church and can’t afford the kind of multi-million dollar payments required of the Catholic church.  In other words, it could bankrupt the convention.

Again, some will say, so what?  Well, why should church A in Anytown, Alabama, that regularly gives to the Cooperative Program and has no history whatsoever of sexual abuse problems underwrite church B in Anytown, Kentucky, which has multiple claims against it?  How is that proper or fitting?  This is not a rhetorical question, as the apparent concentration of responsibility in the EC may have these kinds of legal consequences.  What’s more, plaintiff’s attorneys are watching and will continue to sue the SBC until they get a breakthrough case.  This could unravel the entire fabric of how the SBC cooperative program works.  This is not pie in the sky lamentation.  This is the real world of legal maneuvering.

Is waiving attorney client privilege likely to start a cascade of dominoes falling as suggested above?  Probably not.  But risk management involves looking at both the probability of an event and the potential outcome.  “Low risk/potential catastrophic loss” situations result in countless settlements of countless kinds of cases around the United States every single day.  I say this as someone with experience in handling such matters from both sides for over 28+ years.  To blithely ignore this (as some have done) or to downplay the significance of this issue (as many have done) is not somehow more spiritual than trying to arrive at a reasoned and sensible outcome that manages the convention’s resources effectively.

Finally, the “if you have nothing to hide” argument is abysmally shortsighted and lacks any grace at all.  Never mind that few of us would be open to having some unknown entity snooping around in our private business . . . not because we’ve done anything wrong but because it’s just unseemly.  Moreover, as noted above, very frequently attorneys are consulted on point A and end up discussing an unrelated point B in the same communication.  That simply cannot be parsed out once privilege is waived.  It may well be that EC members or staff who have communicated with lawyers have done so such that very sensitive matters completely unrelated to the Guidepost investigation get revealed.  Maybe, just maybe, they don’t want this stuff revealed in order to protect others and not themselves.  How about a little benefit of the doubt here instead of smug self-righteousness?

Conclusions

It is important to understand two clear realities here.  First, the SBC messengers cannot by any means at any time for any reason under any circumstances require an individual to waive his or her attorney client privilege. Second, while the SBC can require the EC as an entity to waive attorney client privilege, this isn’t what the motion requested. While there may be absolutely no consequences to individual members of the EC or staff members agreeing to waive attorney client privilege, that is an unknown at this point.  It is unfair to the individuals involved to request a blanket waiver not knowing what consequences might ensue, particularly in light of the litigious environment in which we live.

For so many within the convention to publicly stake out positions on something about which they really know very little is both absurd and disturbing.  Plenty of lawyers within SBC churches could have been consulted, undoubtedly for free, in advance of the proposal in order to sort out the kind of problems that are now arising.  I, for one, would have been happy to offer such an opinion.  I’m sure there are others who would have gladly chipped in to do the best they could to insure a clean motion that satisfied as many concerns as possible.  In the emotional push to get “something” done, something unfortunate got done.

Years ago there was a television commercial for FRAM™ oil filters where one mechanic stood in front of a messed up car engine being fixed by another mechanic named Joe.  The first mechanic says “FRAM™ filters don’t cost much.  You can pay me now” and Joe pops in and says “or you can pay me later.”  Well, the SBC messengers, unknowingly, passed an ill-informed motion and now we’re all paying Joe later.