SBC legal team resigns after vote to waive attorney-client privilege in sex abuse investigation

Messengers to the Southern Baptist Convention Annual Meeting June 15-16, 2021, cast ballots for several motions and elections throughout the two-day event in Nashville, Tenn.
Messengers to the Southern Baptist Convention Annual Meeting June 15-16, 2021, cast ballots for several motions and elections throughout the two-day event in Nashville, Tenn. | SBC/Eric Brown

The legal counsel for the Southern Baptist Convention has resigned less than a week after SBC Executive Committee members voted to waive attorney-client privilege during an investigation into the panel's handling of sexual abuse claims against churches.

In an Oct. 11 letter sent to Executive Committee President Ronnie Floyd, the SBC's general counsel, attorneys James Guenther and James Jordan of Guenther, Jordan & Price law firm of Nashville, Tennessee, cited the committee's decision to waive attorney-client privilege as a key reason for their departure from the denomination after over 60 years of service. 

"We simply do not know how to advise a client, and otherwise represent a client, with the quality of advice and representation the client must have, and in keeping with the standard of practice our firm tries to uphold, when the client has indicated a willingness to forego this universally accepted principle of confidentiality," the team wrote.

After weeks of deliberations, the committee voted 44-31 on Oct. 5 to allow ​​Guidepost Solutions, the firm investigating the committee's handling of sexual abuse claims within SBC churches, to review privileged communications between committee members, staff and their lawyers as requested by messengers and the Sexual Abuse Task Force.

In response, at least 10 executive committee members resigned either before the vote or shortly after, The Tennessean reported.

The investigation was prompted by a 2019 report from the Houston Chronicle that documented hundreds of abuse cases in Southern Baptist churches over decades.

Some committee members had expressed concern over waiving privilege, citing risks to the convention's insurance. Some also warned doing so could jeopardize the financial stability of the SBC and make the denomination susceptible to lawsuits. 

In their letter, the attorneys stressed that maintaining local church autonomy helps protect the SBC legally. They said committee members voted to waive privilege without fully understanding the "effect" doing so will have on the convention.

"The attorney-client privilege has been portrayed by some as an evil device by which misconduct is somehow allowed to be secreted so wrongdoers can escape justice and defeat the legal rights of others," Guenther and Jordan wrote. "That could not be further from the truth."

"The concept is rooted in a principle of judicial fairness and the belief that our nation of laws is best served if persons or entities can communicate with their legal counsel freely and confidentially. There is nothing sinister about it. It does not corrupt justice; it creates a space for justice."

The attorneys said that they do not want their decision to be harmful to the Executive Committee, adding that they would be willing "to continue providing legal counsel during a transition and in a limited and specifically defined role going forward."

Guenther, 87, who has been general counsel for the SBC since 1966, told The Baptist and Reflector in August his firm has represented the SBC in approximately 50 cases where the denomination was being sued over alleged wrongs that occurred in local churches.

The newspaper reports that Guenther's firm has never lost an ascending liability suit because SBC is not a hierarchical denomination and the convention has no control over churches.

Guenther told the outlet in August that while there have always been controversies within the denomination, Southern Baptists have consistently "weathered those disputes."

"I think that cooperation, which is entirely voluntary, depends on Baptists having trust in the institutions and the leadership of the convention. Controversies endanger that trust but Southern Baptists have historically gotten through those divisions and moved forward," he said.

Floyd told Baptist Press the attorneys had "admirably served the legal needs of the Southern Baptist Convention and the SBC Executive Committee" for decades and had been a "pivotal guide through numerous changes" in SBC culture and polity. Floyd previously called for empathy as SBC leaders navigate how to best proceed with the investigation.

"The loss of their institutional knowledge will be irreplaceable," Floyd said. "With deep regrets, we accept their decision and fully understand their reasoning behind it and their need to withdraw. We are extremely grateful for their 56 years of superior service to the Southern Baptist Convention and the Executive Committee."

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