Conversations among the officers of the Southern Baptist Convention (SBC) Executive Committee (EC) are focused on attorney-client privilege as they work to reach an agreement with the Sexual Abuse Task Force mandated by messengers to the 2021 SBC annual meeting and appointed by SBC President Ed Litton.
Central to the conversation is a model of attorney-client privilege called the Michigan Model. It was introduced to SBC EC trustees at their special called meeting Sept. 28. EC officers say they first heard of it Sept. 27 when it was introduced to them by Guidepost Solutions, the third-party investigative firm selected by the task force to investigate the EC’s handling of issues related to sexual abuse.
According to legal advisers to the EC, “The Michigan Model is a plan to ensure a full, fair and independent investigation while protecting privileges.” The model was developed for an independent investigation of sexual abuse at the University of Michigan.
Steps taken in the Michigan Model were outlined in a written explanation to Baptist Press (BP):
- The EC hires a reputable law firm to conduct an independent investigation;
- The law firm has access to all documents, whether privileged or not;
- The EC has agreed in advance that the law firm will release its independent written report to the public;
- The law firm may hire an investigative firm to assist in the investigation;
- The EC cooperates fully with the investigation by producing documents as requested and encouraging individuals to cooperate as well;
- The law firm produces a written report that has not been edited by the EC;
- The law firm releases to the public the written report, which does not contain or reveal privileged documents or information.
The EC does not see the written report of the law firm until the public does, the advisers said.
During the Sept. 28 meeting, task force chair Bruce Frank told EC members the Michigan Model was acceptable “as long as the task force is the one doing the contracting, thereby taking out the conflict of interest.”
“If the EC is the one doing the contract, it doesn’t pass the smell test at all to the public, to survivors, to anybody,” Frank said. “But if you change that, it’s very doable.”
Julie Myers Wood, CEO of Guidepost Solutions, told BP the Michigan Model “does not waive attorney-client privilege. … The investigative team can see everything, but they can only report on the non-privileged information.”
“In our case, the [task force] would contract with both a law firm and Guidepost,” Wood said. “The law firm would provide the umbrella of privilege, Guidepost would conduct the investigation working with the law firm on privilege issues, and Guidepost would have access to all information.”
She added that if the Michigan Model is used, Guidepost could not report on privileged information in its public report.
“Good parts of this Model include the inability of parties to interfere or edit the investigative report, but this Model does limit what can be in the public report, and potentially undermine the report’s and EC’s credibility since the privileged information cannot be shared,” she said.
The SBC EC released a statement on Sept. 30 saying, “The Executive Committee is committed to fulfilling the will of the messengers including by granting appropriate access to investigators to the documents and information they request to do their work. There is no attempt to defy the messengers or hide information from investigators.”
According to an SBC EC spokesperson, “The Executive Committee has been working to get the Task Force to consider a process that will be thorough, transparent and allow for the full truth to be published. We are confident that the intent of the messengers to the 2021 annual meeting can be accomplished without risking unnecessary damage to the Southern Baptist Convention.”
The EC voted on Sept. 28 to take seven days to try to reach an agreement on attorney-client privilege.
The full text of the SBC EC’s statement is below:
“With one collective voice our Convention is expressing its concern for victims of sexual abuse and that is a very good thing. The SBC Executive Committee leadership also appreciates the continued engagement & active interest of Southern Baptists nationwide in this process. However, we are concerned that too many of the statements issued reflect disinformation, half-truths, and mischaracterizations of the motives and actions of the Executive Committee. The Executive Committee is committed to fulfilling the will of the messengers including by granting appropriate access to investigators to the documents and information they request to do their work. There is no attempt to defy the messengers or hide information from investigators.
The Executive Committee has been working to get the Task Force to consider a process that will be thorough, transparent and allow for the full truth to be published. We are confident that the intent of the messengers to the 2021 annual meeting can be accomplished without risking unnecessary damage to the Southern Baptist Convention. For instance, the Task Force admits their process may cause the loss of the Convention’s insurance.
Our prayers are for an outcome which meets the needs of the Convention to know the full truth and allows our Trustees to fulfill their fiduciary duties, in compliance with the law. We hope for an ultimate decision which merits the vast majority of the Board’s support so that all Southern Baptists can be confident in the final product. Those who appeal alone to divine intervention to protect the Convention also wear safety belts when they drive and insure their vehicles and their homes.”
– SBC Executive Committee Spokesperson
(EDITOR’S NOTE – Brandon Porter serves as associate vice president for Convention News at the SBC Executive Committee.)
