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Rachael Denhollander: Why the SBC EC Is Reluctant to Give Up Attorney-Client Privilege

attorney-client privilege

As Southern Baptist Convention (SBC) leadership remains at an impasse about conditions for investigating sexual abuse within the denomination, victim advocate Rachael Denhollander is urging them to “do the right thing” and value people over proceeds. The SBC’s Executive Committee (EC) has been deadlocked about whether to waive attorney-client privilege ahead of a third-party independent investigation by Guidepost Solutions.

At the SBC’s 2021 annual meeting, delegates (called Messengers) voted for the third-party review, rather than letting the EC investigate itself. But by a 39-35 vote this week, the EC defeated a motion to waive attorney-client privilege. Southern Baptists in favor of an independent review say an honest accounting—and future improvements—can’t happen without access to all communications.

Rachael Denhollander Explains Attorney-Client Privilege

In a recent Twitter thread, attorney and sexual-abuse survivor Rachael Denhollander explains the benefits and risks of waiving privilege—a debate she says is common for “institutions in crisis.” The benefits of waiving are “huge,” she writes, because “you simply cannot accurately diagnose problems” otherwise. Not waiving privilege “increases your liability over the long run because you will keep making mistakes, causing damage, and having responsibility for it.”

Denhollander offers this message to the SBC: “If you want to be a good fiduciary, stop thinking myopically. Start thinking comprehensively.” Waiving privilege, she says, offers opportunities to “begin to rebuild trust” as well as to “start to repair some of the damage your institution did to real people.”

Regarding risks, Denhollander says there are “None. Unless you’ve created liability.” Because of insurance provisions, she says, waiving attorney-client privilege only involves “risking insurance funds.” So the decision boils down to valuing “insurance proceeds over people,” she says. “Specifically, over people you actually hurt and caused life-altering damage to.”

Denhollander points out that her children, “by age two,” knew that “basic repentance” was necessary when they hurt someone. “The waiver question,” she says, reflects the denomination’s opinions on the worth of a child and isn’t complex. “If someone tells you otherwise, start asking why.”

She adds that waiving privilege has “NOTHING to do with your American Constitutional rights to counsel” and that “it’s not true that attorneys will always say waiver is a bad idea.”

EC President Ronnie Floyd Writes Open Letter to Baptists

Ronnie Floyd, president of the Executive Committee since May 2019, sent an open letter to Baptists Friday, urging all parties to “cooperate and find a way forward together.” The EC, he writes, “fully welcomes this [independent] review” and has “nothing to hide.” He adds, “Anything discovered needs to be revealed, repented of, and addressed in every way possible.”