Privilege waiver central as EC prepares for second special meeting

NASHVILLE (BP) – Members of the Southern Baptist Convention Executive Committee are set to meet Tuesday (Oct. 5) at 11:30 am EDT in a special called virtual meeting related to a third-party investigation of the EC and its handling of sex abuse claims. It will be the second meeting of the Committee in as many weeks since the Sept. 20-21 regularly scheduled meeting. Attorney client privilege is the central issue of the trustees’ deliberation.

The Sexual Abuse Task Force, appointed by SBC President Ed Litton, has contracted Guidepost Solutions to lead the investigation. On Sept. 21, EC trustees allocated up to $1.6 million for the task force to complete a public report that is due 30 days before the 2022 SBC Annual Meeting in Anaheim on June 14-15.

In a letter to trustees from members of the board, the comments of Houston-based attorney, Mark Lanier, were shared. Lanier is a member and Sunday school teacher at Champion Forest Baptist in Houston and has represented both Paige Patterson and Paul Pressler, two of the architects of the Conservative Resurgence.

“The Motion presented at the Annual Meeting implies that waiving attorney-client privilege is best standards and practices. That could not be farther from the truth,” Lanier wrote. “From the date of the Motion to the present, there has been no effort to support as a best standard and practice the blanket, prospective waiver of the attorney-client privilege. It is not.”

While not a part of the EC’s legal team, Lanier is a veteran attorney with more than 30 years of legal experience, and is the founder of the Christian Trial Lawyers Association and the Lanier Theological Library. He has won more than $20 billion in liability and personal claim verdicts throughout his legal career. Attorneys from Nashville-based Guenther, Jordan and Price and Dallas-based Locke Lord have been providing legal counsel to EC members and senior staff.

Lanier wrote, “Exercising the privilege in a beginning stage of an investigation is especially important, for once the privilege is waived, it is waived for all purposes and all time. That is why it typically waives insurance coverage.”

However, in a statement released Monday, the Sexual Abuse Task Force said “there is simply no way to ascertain if the risk will ever be realized, and there are multiple proof thresholds which would have to be met before insurance proceeds could be lost for any specific case.”

It also stated that the task force is not asking for a blanket waiver from the EC. “No, the waiver of attorney-client privilege in the ’Messenger Model’ is limited in both time and scope,” the statement said.

The task force pointed to the scope of the investigation, “The time period is only between 2000 – June 2021.” The scope is also limited to “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.”

The task force statement said the investigation will include only staff and members of the EC who have acted or made decisions on behalf of the EC during the period in question. The task force also wrote that “waiving attorney-client privilege is best practice and is the only practice that will provide the ability to both access and report on all relevant information.”

“Guidepost, as can be best understood, has claimed that a blind waiver is best practices here because the Messengers indicated that they wanted full transparency and blindly waiving privilege is the only way to get full transparency,” Lanier wrote. “…Lawyers in litigation can always make strategic waivers should such be important for fairness or justice. However, that should never be done in a sweeping way without input of the litigating counsel.”

As discussions have raged online, concerns related to both the loss of insurance and waiving of privilege have led some trustees to leave the board in recent days.

According to SBC EC chair Rolland Slade, “…a handful of trustees have resigned [since the Sept. 21 meeting] and, if the board were to vote to waive privilege, I expect a handful more to do the same.”

Slade was added as the signatory—instead of EC president Ronnie Floyd—on an updated letter of engagement released by the task force. As the meeting approaches, Slade asks all Southern Baptists “…to continue to pray for us as we wrestle through these decisions.”

The meeting will be streamed online at sbc.net/ec0921.

EDITOR’S NOTE: This story was updated after publication to include further biographical info about Lanier.

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