Unlike many who read Baptist News Global, I hold no nostalgic memories and feelings for the Southern Baptist Convention. I regard the SBC as an institution conceived, birthed and used to associate the gospel of Jesus with white supremacy from its start to the present time.
As a jurist and former law professor who taught professional ethics, I understand that lawyers are duty-bound to protect their clients and keep confidential information received from and about their clients. I also understand the concept of privilege, its history, purpose and limitations. That understanding makes me sympathetic to the lawyers who have represented the SBC and who have decided to sever their relationship with the SBC in the wake of decisions by SBC messengers to waive attorney-client privilege so the Guidepost Solutions team can do its work investigating the role of the SBC Executive Committee concerning sexual abuse allegations from women who worked, studied or were otherwise affiliated with SBC entities.
The lawyers are ethically bound to protect the SBC as an institutional client from liability for alleged sexual abuse. That duty includes an obligation to investigate allegations, report on those investigations to SBC officials and represent the interests of the SBC in litigation concerning those allegations.
Simply put, the lawyers are ethically bound to protect the SBC empire from legal liability and the risk of incurring substantial costs from settlements and court claims. It will be impossible to discharge that duty when the SBC waives the attorney-client privilege concerning sexual abuse allegations. Continuing to represent the SBC after the client has waived the attorney-client privilege runs the risk of exposing the lawyers to liability for concealment.
I predict that the lawyers will seek an injunction to prevent the SBC from disclosing information about the legal counsel given the SBC concerning the sexual abuse allegations. That lawsuit will be filed in Tennessee state court. The rules of civil procedure in Tennessee, as in other states, protect attorney work product from discovery. A court fight will also involve whether the lawyers can assert the attorney-client privilege against a client when the client has explicitly waived the privilege.
As the litigation proceeds (for the next decade, I suspect), the rights of victims will receive less attention. So, I expect that alleged victims of sexual abuse will look to intervene in the litigation to assert their right to discover whether, and to what extent, the SBC and its lawyers collaborated to conceal evidence of sexual abuse.
“The lawsuit will be one for the ages.”
The lawsuit will be one for the ages about notions of religious freedom, social and legal accountability of religious organizations, and the rights of alleged victims to find, discover and publish information related to their claims.
This controversy will not end well for the SBC, its senior officials and its constituent entities. Meanwhile, victims of sexual abuse will go without remedies for the harms they suffered.
It is morally unjust to protect an entity that tries to conceal the truth surrounding sexual abuse allegations rather than learn and tell that truth. But the SBC Executive Committee is more interested in protecting the solvency and image of its Cooperative Program than in doing justice.
Empires exist to preserve and continue themselves, not to do justice. The ongoing debate about attorney-client privilege is about protecting the SBC Cooperative Program empire, not about doing justice to victims of sexual harassment.
“The ongoing debate about attorney-client privilege is about protecting the SBC Cooperative Program empire, not about doing justice to victims of sexual harassment.”
Slavery was supported and Black people were abused because white people used law to justify stealing their labor, imprisoning their bodies, trafficking their families, and denying them justice in a racist empire. The attorney-client privilege is a law that the SBC can use, and which its lawyers urge to be used, to deny justice to victims of sexual abuse by protecting the sexist SBC empire.
One need not be a Southern Baptist — or even a follower of Jesus for that matter — to recognize that the attorney-client privilege is a fig leaf that lovers of the SBC hope will shield their empire from liability for the harms caused by SBC sexual predators. We who believe in justice but are not in the SBC should say so, despite what the SBC says, or does.
Wendell Griffen is an Arkansas circuit judge and pastor of New Millennium Church in Little Rock, Ark.
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