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On Waiving Attorney-Client Privilege

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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.

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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.

2 replies on “On Waiving Attorney-Client Privilege”

All very good points. The part most people will miss is insurance.

Right now, insurance companies will pay for legal harms that the EC causes to victims. But part of the legal contract is that the EC promises it won’t undermine the Insurance Company’s right to defend against those claims. If the victim’s lawyer asks for $40m, the insurance company can argue it’s only $10m or $20m.

By waiving the privilege, the EC will waive its insurance — all of the memos that say “here are our weak spots” will get handed over to lawyers. Which undermines the insurance company’s ability to defend. And so there will be no insurance.

Which means that instead of the insurance company paying for harms to victims and all the lawyers, it will be offering plate money. And while it’s right to compensate victims, it should come from insurance if possible. That minimizes the harms to other, innocent parties that depend on Cooperative Program funds.

Have you seen the insurance policies in question? I would be shocked if there are not very material exclusions related to sexual abuse. Especially after the Catholic Church abuse scandal, insurers routinely included such exclusions, some more comprehensive than others. The more recent the policy, the more likely the breadth of the exclusion. It is simply not true we can assume these policies will pay for the legal harms sight unseen.

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