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Controversy Ecclesiology Reform

On Waiving Attorney-Client Privilege

A current hot-button issue among Southern Baptists is the task force created to oversee an independent investigation into the handling of sexual abuse allegations by the Southern Baptist Convention Executive Committee. We reached out to a faithful brother who is an attorney to ask about the ramifications of the investigating bodies’ request that the Executive Committee waive attorney-client privilege. Why does attorney-client privilege exist? What does it mean and what does it cover?  How should Christians think about attorney-client privilege? Below is his answer.

What happened at the annual meeting? What did the motion say?

Among the numerous items of business that were considered at the SBC Annual Meeting this past June was a “Motion to Investigate the SBC Executive Committee.” This motion received no small amount of attention at the time, as part of a larger campaign to investigate allegations of sexual abuse. Part of the motion (with emphasis added) is included below:

“We further move that the task force agree to the accepted best-standards and practices as recommended by the commissioned third-party, including but not limited to the Executive Committee staff and members waiving attorney client privilege in order to ensure full access to information and accuracy in the review.”

Waiver of attorney-client privilege is no small matter, yet that portion of the motion seems to have received relatively little attention.

What is attorney-client privilege? Why is the privilege important?

​​Most readers probably have at least a general idea of what is meant by the attorney-client privilege. Nevertheless, defining the concept a little more concretely will be helpful for the purposes of this article.

One of the oldest concepts in the Anglo-American system of common law, the attorney-client privilege is (as the name implies) a privilege held by legal clients (and exercisable by them) that protects the confidentiality of a client’s communications with the client’s attorney. Writing for the ABA Center for Professional Responsibility, Sue Michmerhuizen helpfully explains further:

The attorney-client privilege only protects the essence of the communications actually had by the client and lawyer and only extends to information given for the purpose of obtaining legal representation. The underlying information is not protected if it is available from another source. Therefore, information cannot be placed under an evidentiary “cloak” of protection simply because it has been told to the lawyer.

The important points to highlight here are: (1) communications, not information, are what the privilege protects and (2) not all communications with an attorney are protected. Hopefully the readers’ eyes haven’t begun to glaze over at what looks like legal minutiae, but at least a basic understanding of the contours of the privilege is important if one is going to assess what the messengers actually did when the motion was approved in June.

Photo credit: https://www.feldesmantucker.com/u-s-supreme-court-tackle-implied-certification-theory-false-claims-act-liability/

One might reasonably ask, “Who cares? Why should communications between an attorney and his clients be kept confidential?” The United States Supreme Court has succinctly explained the importance of the privilege:

Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer’s being fully informed by the client.

Upjohn Co. v. United States, 449 U.S. 383, 390 (1981).

Thus, although it may not seem so at first, the goal of the privilege is to promote justice, not stifle it. The very purpose of seeking advice from an attorney is so that the client can be reliably informed about how to conform his actions to the law. If clients are afraid that their communications with their attorneys may be used against them, they will be deterred from seeking out that advice and will be left to do their best to discern for themselves what the law requires.

What is the relationship between the EC and the rest of the SBC?

Another issue that is important to flesh out before thinking about the implications of the motion is the relationship between the Executive Committee (“EC”) and the rest of the Southern Baptist Convention. In one sense, the Southern Baptist Convention writ large exists only once per year when the messengers assemble for the annual meeting. In between those meetings, however, the EC acts as “the fiduciary, the fiscal, and the executive entity of the Convention in all its affairs not specifically committed to some other board or entity.” Among other duties, the EC is “specifically authorized, instructed, and commissioned to . . . act for the Convention ad interim in all matters not otherwise provided for.”

In other words, the EC takes actions on behalf of the messengers (and by extension the churches they represent), but it is not a separate entity unto itself with any inherent authority. As some have pointed out, the polity of the SBC leaves little room (perhaps none at all) for the EC to decline to follow direction given by the assembled messengers. The EC has only a delegated authority, but because that delegation covers “all matters not otherwise provided for” the scope is potentially quite broad.

What are the unanswered questions arising from the motion to waive privilege?

With that background in view, hopefully Southern Baptists will begin to ask some questions about the motion. 

Photo Credit: Julie Roys
https://julieroys.com/hannah-kate-williams-sues-sbc-alleged-sex-abuse/

For instance, it’s not entirely clear what the motion is asking for. Was the intent that the EC waive privilege for the EC itself? Some of the more recent discussion (online and elsewhere) seems to assume that was the intent, but that does not line up with the wording of the motion which refers to “staff and members waiving attorney client privilege.”

Yet, that only leads to another question: can the EC waive privilege on behalf of its members or its staff? It is well-established that the privilege is held and can only be waived by the client. But who is the client in this scenario? Is it the EC itself or the staff and members? Can the messengers of the SBC require individuals to waive their own attorney client privilege? If the motion requires that the EC waive privilege for its staff and members, have the messengers asked the EC to do some action that the EC has no legal authority to do?

It’s not so much that these questions don’t have answers, but they are certainly answers that would be unknown to the vast majority of the messengers who were at the meeting, few of whom were attorneys with more than superficial knowledge in this area of the law.

Additional questions about what the motion intends remain unanswered. What is the scope of this waiver? It certainly reads as if it is meant to be a blanket waiver, but is anything so broad really necessary or was this meant to be more limited in scope?

Alongside the “what” the messengers might well want to ask the “why.” Given just how important the attorney-client privilege is, why is anyone being asked to surrender that legal protection at the outset, before anyone has even had the chance to assert the privilege? Why was the motion stated in terms of a blanket waiver rather than one more limited in its reach? Why ask that privilege be waived in the first place, knowing that the prevailing legal advice would be not to do so?

All of those questions are important and ought to have been answered in Nashville. Even if the presiding officer’s asking the messengers whether there was discussion was more than a mere formality, the kind of deliberation necessary to answer these questions never would be possible from the floor of the meeting. Ample time seems to have been allotted for that portion of the meeting, but no meaningful discussion actually occurred.

Photo Credit: https://religionnews.com/2021/06/07/after-leaked-letters-southern-baptist-pastors-demand-inquiry-into-handling-of-sex-abuse-cases/

It’s clear, however, that SBC leadership was prepared to deal with motions that had legal implications. An attorney was called to the stage to render an opinion about the ability of the messengers to rescind a resolution passed by the previous annual meeting, but no one thought it would be a good idea to have an attorney speak to the ability of the messengers to instruct the EC to waive the attorney-client privilege of its individual staff and members? One struggles to find a satisfying explanation for that disparity.

One also struggles to discern more than the most superficial of justifications for the waiver part of the motion. It seems to boil down to the naked assertion that “the commissioned third-party” said the EC has to waive in order to have a thorough investigation. Even that claim, however, seems to have been subjected to very little scrutiny. One is forced to speculate, but the rejoinder may well be related to recent actions by the Attorney General of Michigan who cancelled one investigation and refused to begin another unless the institutions under investigation would give up attorney client privilege. Regardless of the merits of such a demand by the Attorney General of Michigan, no one seems prepared to attempt to justify such a demand in the case of the SBC. 

Across the country, countless investigations of even the most heinous criminal wrongdoing proceed every day without law enforcement officers or prosecutors demanding that individuals waive the privilege. That is because, as noted above, investigating the facts of a situation does not require stripping confidentiality from the communications between clients and lawyers.

A common bromide in discussions of privilege (as well as discussion of the right against self-incrimination) is “If you’ve done nothing wrong, then you have nothing to hide.” Without meaning to be uncharitable, such statements are as ignorant as they are harmful. The privilege was not established and maintained over the past centuries as a convenient means to cover up wrongdoing but, as explained above, to encourage individuals to consult legal professionals so that they can know what is the right thing to do.

In fact, given the way that abuse has been defined of late, asking the staff and members of the EC to give up legal rights out of a claimed spiritual obligation is itself a form of abuse. Unquestioning proponents of a blanket waiver of privilege would do well to consider whether they, in fact, are the ones engaged in wrongdoing (even if only because they are uninformed).

Finally, the tactic of insisting that individuals or organizations under investigation waive attorney-privilege is a practice of prosecutors that has come under significant scrutiny as its use has increased since the late 1990s. David M. Brodsky, Steven K. Hazen, R. William Ide, and Mark O. Kasanin, commenting on proposed changes to the Federal Rules of Evidence, brought into sharp relief the problematic aspects of this “you must waive privilege for us to do our investigation” approach:

Under current governmental policies, companies do not realistically have the option to preserve the confidentiality upon which an effective attorney-client relationship is so heavily dependent and otherwise protected by the privilege and doctrine, or they run the considerable risk of being deemed “uncooperative” by the government authority— a characterization that can be a virtual corporate death sentence or, at least, extraordinarily financially punitive. Putting it another way, if the government decides a company is not being cooperative, in essence the government can act as a prosecutor, judge, jury, and executioner.

Although their comments were written in the context of government investigations, the danger to the SBC is the same. The messengers may well have put “the commissioned third-party” in the position to “act as a prosecutor, judge, jury, and executioner.”

Photo Credit: https://ph.news.yahoo.com/southern-baptist-president-calls-action-sexual-abuse-035855894.html

If the staff and members of the EC (whether in keeping with SBC polity or otherwise) do not waive privilege, will they be criticized for being “uncooperative”? If that is not what the authors of the motion intended, is it at least something that they considered? Again, these questions are ones that could have been answered months ago. They should have been answered months ago. That they were not answered in June puts the EC in a dilemma that seems, at this point, impossible for them to resolve without doing significant damage to the SBC. That’s a particular shame because the dilemma that has been set up for the EC is one that need not be faced in order to have an investigation.

Joseph Knowles is an attorney who lives and works in Virginia.
He also co-hosts the Church History Matters Podcast.

Categories
Controversy Critical Theory Ecclesiology Methodology Missions Reform Social Justice

Kyle Whitt Goes on the Record with Significant & Specific Concerns about NAMB

Kyle Whitt has released a video with several specific and distressing claims about the doctrinal fidelity and inner workings of the Southern Baptist Convention’s North American Mission Board discovered during his two years working to plant a church in Washington state.

From Whitt’s Reddit post:

For the past two years I’ve been working with NAMB to plant a church in Washington state. After hours of research and conversations, I came to the conclusion that NAMB’s church planting arm, the Send Network, is pushing us to teach a false gospel. There are many other serious issues at Send and NAMB, but this video only covers the biggest and most important. I get that this is a big accusation, and believe me this is not something done lightly or without a lot of prayer. I ask that you watch the whole thing, look into what I’ve pointed out, and use this as a starting point to answer this question. I’m extremely nervous right now, as I have no idea what posting this video will result in for me, so it might take me a little bit to reply to comments. I plan on doing some follow up to help answer questions/clarify things (livestream? AMA?), but for right now I’m taking this one step at a time.

More:

Some [at NAMB] are adding specific works as a “key component of the gospel.” I assumed they were wording it poorly, talking about obedience to Christ, and the good works we do as a result of the gospel transforming us. After lots of research, and conversations (including with Dhati Lewis, head of NAMB’s church planting arm, the Send Network) it was clear that no, they’re attaching these things directly as a part of the gospel.

Watch the video here:

For the sake of our cooperative missions endeavor here is to hoping NAMB will answer Whitt’s claims as forthrightly as he has made them; more this kind of direct speech is desperately needed in this era of Southern Baptist history.

Edit

Whitt’s claims seem to echo Dhati Lewis’ controversial statements in this video:

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Christology

Happy Easter!

Via Reftoons:

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Complementarianism Ecclesiology Methodology Missions

NAMB Document Clarifies Complementarian Commitments

CR:V has received the following document from Danny De Armas, current Chairman of our North American Mission Board (NAMB) Trustees.  As you will see, the document articulates NAMB’s approach to planting churches, complementarianism, and women pastors.

We are thankful for the work of NAMB planting healthy churches as well as their commitment to the clear teaching of Scripture as affirmed in the doctrinal framework that forms the core of Southern Baptist Cooperation, the Baptist Faith and Message 2000.  We are also thankful for the way this document represents the kind of meaningful communication between SBC entities and SBC members that is so central to the cooperative work of the Southern Baptist Convention.

Background on NAMB and Church Plant Endorsements

As part of NAMB’s endorsement process, we require each planter to affirm the Baptist Faith & Message 2000, sign a NAMB code of conduct and commit to dedicating at least six percent of their church budget to the Cooperative Program. NAMB will continue to emphasize these commitments in planter assessment, orientation, training and coaching.

NAMB does believe, as the Baptist Faith & Message 2000 says, that “both men and women are gifted for service in the church.” NAMB is grateful for the many ministerial roles women play in the local church, at home, in workplaces and in fulfilling the Great Commission.

NAMB has always and will always only endorse Biblically qualified men as pastors. NAMB is committed to the Baptist Faith & Message 2000, is complementarian by conviction and does not endorse women as pastors.

NAMB is directed to work with all of the SBC’s autonomous churches in fulfilling its mission and ministry assignments, which include assisting all SBC churches, associations, and state conventions to plant new SBC churches. If a sending church, local association or state convention finds a church not to be in cooperation, NAMB has and will continue to respond appropriately.

In a recent review NAMB conducted of its nearly 1,200 currently endorsed church planters, only six listed a woman with a title of pastor in a staff role. Those have been addressed. We individually and appropriately address these situations as they come to our attention. Our goal is always to lovingly help these churches and pastors model sound ecclesiology, in accordance with Southern Baptist’s understanding of Biblical teaching. We want to coach them. We want to correct them. And we want to keep them.

If an occasion occurred in which a church planter insisted on maintaining a woman in a pastor role or title on staff, NAMB will remove its endorsement and funding. The use of such titles and roles can be confusing to the constituencies with whom we partner and who fund our work. But, rather than publicly shame pastors, we find it better to come alongside our brothers and sisters in Christ and lovingly work with them as we pursue together our Great Commission ministry.

Questions about a specific church plant can be emailed to NAMB at fyi@NAMB.net.

A copy of the PDF CR:V received can be downloaded here:

NAMBChurchPlantEndorsements

Categories
Complementarianism Controversy Ecclesiology Gender Methodology Missions

NAMB Follow-Up | Current Church Website Profiles

Yesterday we released an article describing concerns over egalitarianism in NAMB church plants. Since then, the most frequent question we’ve received is whether or not these are current NAMB churches.

Each of these churches was verified on the NAMB church plant database prior to publication. Each church was re-verified today and that is documented below. This website information does reveal the names of the churches. We want to again stress that our intention is to seek clarification from NAMB and all our SBC entities, not to interrogate the practices of any individual church.

This post is being provided so that those interested can see the accuracy and timeliness of our concerns. Our previous article stated that one of the five churches has already left NAMB affiliation. If more of these churches have since left NAMB and the SBC, this does not change the substance of our questions. Indeed, if that is the case it raises questions about our assessment process on such a key doctrinal issue.

While how we got to this point would still be concerning, many Southern Baptists would be relieved to see a statement from NAMB clarifying our current church planting practices in regards to egalitarianism.

We want to hear that NAMB does not plant or partner with churches who violate the BF&M2000 by appointing women to the office of pastor. The office of pastor is not arbitrarily limited only to one position in a local church known as a “senior” or “lead” pastor, and this language is found nowhere in the BF&M2000. We would expect that any SBC entity would be eager to affirm such a statement, and to correct any practices found to be in violation of this.

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History SBC Author

A Commitment to Truth: The Twentieth Anniversary of the Baptist Faith & Message (Albert Mohler)

In this article, R. Albert Mohler, Jr. remembers, “the conservative revision of the Southern Baptist Convention’s confession of faith, the ‘Baptist Faith and Message.'”

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Controversy Critical Race Theory Critical Theory Methodology SBC Author Scripture Social Justice

An Open Letter to the Southwestern Seminary and Scarborough College Family (Adam Greenway)

In this open letter, Adam W. Greenway, President of Southwestern Baptist Theological Seminary, addresses recent controversy surrounding a recent statement from the Council of Seminary Presidents.

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Podcast

The Blessing of Church Discipline with Allan Hampton

On Ep. 22 of The CR:V Podcast Allan Hampton joins us to talk about the blessing of being on the receiving end of church discipline. We trust you will find the conversation both informative and edifying.

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Abortion Abuse Complementarianism Controversy Critical Race Theory Critical Theory Gender Homosexuality Intersectionality Methodology Racism SBC Author Scripture Social Justice

Will Southern Baptists practice biblical conservatism or acceptable progressivism? (Ronnie Floyd)

In this article from Ronnie Floyd’s Advancing the Vision series, Floyd writes, “The future is not in having cultural conversations apart from the Bible. This will always lead to division. Southern Baptist pastors, leaders, and churches need to be having biblical conversations about cultural matters.”

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SBC Author

Some Reflections On Those Who Walk Away from the Faith (Rhyne Putman)

(You can find the following Twitter thread from Rhyne Putman here or here.)
A few traits characterize the theologians, pastors, and students I know who have walked away from their faith.