Waiving Attorney-Client Privilege Is An Enormous, Needless, Irrevocable Mistake
Thoughts on insurance, connectionalism, and having enough money left to help any survivors.
The following was originally a private message to a group of SBC leaders. — RDM
by Rod D. Martin
September 22, 2021
I’m going to jot down a few thoughts here. These are my thoughts alone and are not advice of counsel. To the best of my knowledge none of these thoughts waive privilege (and as we know, “once waived, always waived”). It’s important that you men understand the crux of this matter and why we acted as we did. I’ll have to ask the lawyers if I may put this out in public, but if only for the sake of my respect for you and your continued respect for me, I wish to explain myself to you. And perhaps you may find nuggets with which you may defend us, should you be so moved.
We have been strongly advised by an enormous (and enormously expensive, top-ranked) legal team that waiving attorney client privilege is wholly unnecessary to achieve the investigation’s desired result. Not only that, but even the Biden Justice Department prohibits its prosecutors from asking defendants to waive privilege: it’s that unethical.
I used the term “unethical” with reason. Just one aspect of that is that waiving privilege would be a breach of our law-imposed fiduciary duty. In so acting, the Executive Committee would be violating the law (where are the Romans 13 advocates on this?) and opening itself up to state enforcement action. Moreover, every individual EC member who votes to violate their fiduciary duty is potentially personally liable for the costs incurred as a result. Yes, Jared Wellman and Dean Inserra might personally find themselves on the hook for hundreds of millions of dollars.
Trust me when I tell you they have not considered that. But they have certainly been warned, and ignorance of the law is no excuse. Plus, why did we make them fiduciaries of the entire Convention if they don’t know or care about the most basic legal requirements of their position?
In any case, the ethics issue is likely to force a waive of resignations among EC members. None of the lawyers or accountants will be able to stay, on threat of losing their licenses. And that may be just the beginning. I suspect this is part of the aim: most of those people are conservatives whom the Russell Moore faction wants purged.
Attorney Client Privilege, Insurance, and “Caring Well”
But that’s not the focus of my comments here. The practical consequences are far worse.
Waiving attorney client privilege without the cooperation of our insurance carrier will almost certainly void our insurance: eleven lawyers, including one nominated for the U.S. Supreme Court, have told us so.
If there are victims — and so far, there are none — how would we compensate them if we needlessly lose our ability to pay? The only answer from the activists is “burn it all down”. Is this “Caring Well”? Do we want justice for victims, or just vengeance?
If we take this action, we’ve been advised that that would likely make the entire SBC uninsurable — not just the EC — and with it, every individual Executive Committee member and EC staff member. This means the trial lawyers would have opportunity to bankrupt the secretaries and preachers with legal fees — forget about judgments: just legal expenses — until some of them sign absolutely anything put in front of them to make it stop.
Right now, the EC has policy coverage for unlimited litigation defense. That’s not cheap, but there’s a good reason for it: if plaintiff’s lawyers know your policy limit, or worse, know that you’re uninsured, they will work to drown you in motions and discovery requests until they exceed that limit. Then they can and will force you to settle on their terms.
This may not be just, but this is how it works. We are not exempt from the law.
The Threat of Liberal Judges Establishing False “Connectionalism”
What the activists openly want to establish is connectionalism, the legally false idea that the various Baptist agencies and churches are all part of a single hierarchy of which the EC is the head, and that they are thus subject to its (and each other’s) legal liabilities. The law is clear on this, and the SBC has won 52 of 52 cases addressing the point. Baptists are not Catholics: on polity we’re literally the inverse. Your church is not responsible for a slip-and-fall at my church, because my church cannot tell your church what to do.
But all it takes is one lying liberal judge, and suddenly all Baptist bodies — the EC, the IMB, your state’s Baptist Children’s Home, even perhaps your local church — are just one big blob. And though they still wouldn’t have any actual authority or oversight over each other, they would all be legally responsible for each other’s liabilities.
That’s not just crazy and unworkable. That would be the certain death of the SBC. Even if everyone is perfect and no one has done anything wrong, as a matter of conviction alone no Baptist would remain part of such an organization, and the number of nondenominational churches in America would grow by about 47,000.
In this case, I believe the wrong plaintiff’s lawyers with the wrong motives would likely seek to squeeze the poorest among us until they coerce sworn “confessions” of connectionalism, and then use those sworn statements from people in authority to take every penny of Cooperative Program giving and every penny at the International Mission Board, etc. But not before they attach each and every member’s (and staff member’s) homes and cars.
That’s over 100 people permanently financially ruined — good luck paying a few million in legal fees plus a few dozen $100 million judgments on a bivocational preacher’s salary. And that’s before every SBC employee gets laid off, every missionary comes home, and the buildings and other assets are forcibly sold.
Don’t believe me? Ask the Boy Scouts.
And if they can establish connectionalism at the national level, there’s no reason they couldn’t establish it all the way down through the states and associations and even possibly to the local churches. It will be too late to leave. They’ll have sworn (false) testimony from a dozen EC members saying we’re actually all connected, and they’ll forum shop for the leftist judge who’ll buy that. If they do it in the right state, we won’t even be able to appeal, for the same reason Gawker couldn’t: we won’t be able to afford to post the bond.
Oh, and since I mentioned Gawker: remember that in the Gawker case, Terry Bolea (Hulk Hogan) won $140 million for ONE improper violation of his privacy. He won that judgment not just against the corporation but against its staff. That killed Gawker, one of the most powerful media organizations in the world. It killed a good many of Gawker’s people too.
How many such improper violations of privacy are there going to be — and how easy will the impropriety be to prove — if we breach our fiduciary duty in the process of our handling of this? And how many new lawsuits will arise from that breach, internal lawsuits rather than external?
The Task Force has been made aware of these issues. They simply do not care. They're being advised by Rachael Denhollander, who's poo-hooing all of this. But of course Rachael is Jen Lyell's lawyer, and who knows who else’s, so she stands to gain financially from us screwing up.
It’s very easy for [Task Force Chairman] Bruce Frank to lecture us about the high price of truth while he faces no risk whatsoever, or at least believes he doesn’t. He’s made perfectly clear he’s prejudged everyone guilty. If you listened to his presentations you know: he seeks vengeance, not truth.
The Guidepost Contract Is Itself Abusive
It’s also all too cheap for him to accost us claiming “you’ve had 100 days” when in fact he presented us with a very flawed Guidepost contract just two weeks ago. What has been requested, in the form it’s been requested, is not “best practice” or even “standard practice”: it’s malpractice. Sorting that out is why delay and negotiation was necessary.
Here are just two examples from the disastrous Guidepost contract, which goes far beyond anything the Messengers required or authorized.
The contract requires that the Executive Committee indemnify Guidepost without limit. If anyone believes they’ve been libeled and sues, the EC has to pay all their legal fees and any judgments against them. That may well be reasonable, but shouldn’t it be discussed (the Task Force says NO): what does that do to our insurance? What does that do to our ability to pay? Why are there no limits, even if Guidepost commits outright wrongs (libel in its report, for instance)? Isn’t the whole point of hiring Guidepost to get things right? Why are we disincentivizing them from caring about accuracy?
The contract empowers Guidepost to provide “trauma-informed counseling” to anyone it chooses, while requiring the EC to pay. Note “anyone” has no limit: they could “counsel” Methodists or Muslims and charge the SBC. We would have no recourse whatsoever. There’s no limit, and no end date. And if (for example) one of their “patients” commits suicide, and her next-of-kin files a wrongful death suit against Guidepost, the EC will have to pay, no matter how many hundreds of millions of dollars that might cost.
Fiduciary Duty Isn’t Just the Law: It’s the EC’s Job Description
Some on Twitter are saying we “had one job”. But that’s not at all true. It’s the Task Force that has one job. The Executive Committee remains the fiduciary for the entire SBC. That is our reason for being. No one repealed that mandatory role in June, and no court of law will agree with Bruce Frank that they did so. Again, he will face no consequences (though his church might), and we will get no re-dos.
I stress in all of this: this is NOT about whether or not we should comply with the motion. I fully expect that we will do so, and we have already fully funded the investigation (I personally helped draft the motion to do so). But if we don't comply correctly, within the bounds of our legal duties and with the consent of the insurance company, we’ll ruin everybody.
I told Tiffany Thigpen yesterday (and she seemed to get it better than Bruce Frank, though that’s not saying much): if we owe you something, I want to make sure we still have a way to pay you.
Getting this right is highly technical, and the task force is acting as though it's nothing.
It's not nothing. In fact, it may prove to be everything.
