Investigations 101: Waiving Attorney-Client Privilege
On January 14, 2022, the ACNA Province announced the hiring of the law firm Husch Blackwell to investigate allegations of abuse and mishandling in the ACNA Diocese of the Upper Midwest.
ACNAtoo has cited several major concerns with this investigation, which we will explore in this 3-part series. In Part One, we focus on the Province’s refusal to waive attorney-client privilege, per this sole reference to the subject in their announcement:
“In order to maintain confidentiality and protect the stories and testimonies of all those who have participated in this process to date, we will not waive attorney-client privilege.”
What attorney-client privilege means:
Attorney-client privilege is a legal term referring to the protection of legal advice shared between a client and their attorney. This information is legally exempt from a demand to share such communications (subpoenas).
Retaining attorney-client privilege in the context of an independent investigation means the client can potentially protect investigation-relevant communications and documents, even clear evidence of misconduct and mishandling, and prevent it from being disclosed to investigators or the public, under the guise of attorney-client privilege.
This is the antithesis of transparency and accountability.
Why waiving attorney-client privilege is pivotal for the UMD investigation:
When reports from Mark Rivera’s 9-year-old alleged sexual abuse victim were made known to the church in 2019, Upper Midwest Diocesan Chancellor (lawyer) Charlie Philbrick advised UMD leaders that they did not need to report this little girl’s sexual abuse to the authorities. This legal advice would typically be exempt from disclosure under the protection of attorney-client privilege, even though it is essential evidence of UMD leaders’ mishandling of these abuse allegations.
As various senior church leaders implicated in the mishandling of child sexual abuse allegations were personally consulting with Chancellor Philbrick for legal guidance, and Chancellor Philbrick is himself implicated in mishandling these abuse allegations, it is essential that all of this information be made available to investigators and included in the public final report. Retaining attorney-client privilege in the UMD investigation allows crucial evidence of mishandling and misconduct to be potentially hidden from public disclosure.
Furthermore, it is not uncommon for documents that do not legally meet the criteria for attorney-client privilege to be falsely claimed under this protection as well. In fact, some organizations intentionally copy their lawyer on communications in an attempt to claim this protection, even though the documentation in question does not actually contain any legal advice. Without giving investigators full access to all relevant materials and church communications, there is no way to determine whether attorney-client privilege is being falsely claimed and misapplied for self-protection.
According to abuse survivor, advocate, and attorney Rachael Denhollander, “because attorneys are usually involved in crafting the policies both for prevention and response, you simply cannot accurately diagnose problems without waiving privilege. You won't have access to all the information.” In an investigation where the diocesan lawyer and multiple diocesan senior leaders are all implicated in mishandling child sexual abuse allegations, waiving privilege is a crucial step toward uncovering the truth.
What attorney-client privilege is not:
As quoted above, when publicly declining to waive attorney-client privilege, the Province stated that the decision was made to protect survivor confidentiality.
This claim, though, makes no legal sense. In a recent article by Religion News Service, Adam Horowitz, a Florida attorney who has represented dozens of Catholic Church clergy abuse survivors, stated that “attorney-client privilege only applies to the communications between an attorney and the attorney’s client, which in this case is ACNA. While communication with alleged survivors may be confidential, it isn’t affected by attorney-client privilege, because survivors are not the clients.”
In other words, attorney-client privilege does not protect survivors or safeguard their stories. It is entirely unrelated and offers protection only to the institution being investigated.
The Province’s statement, then, is deeply offensive to survivors, many of whom have been waiting months or years for a safe independent investigation. These survivors have been slandered, discarded, ignored, and tokenized, and ACNAtoo rejects the Province’s patently false claim that they are maintaining attorney-client privilege for the sake of survivor confidentiality.
What waiving attorney-client privilege accomplishes:
By waiving attorney-client privilege, the Province can show survivors and the public that it is committed to complete transparency and has nothing to hide. This, combined with an appropriately broad investigative scope, assures survivors that the investigation will actually be able to uncover and expose the full story of church misconduct and mishandling. Without this, an investigation will not only fail to achieve transparency, but may actually accomplish the opposite by creating the public appearance of transparency while perpetuating cover-up, all the while further traumatizing survivors.
Waiving privilege is especially vital in investigations focused on the mishandling of abuse allegations (as opposed to simply investigating an abuser), as in the current investigation into the UMD. In this case, allegations of mishandling have been raised against the core leadership of Mark Rivera’s former church (Christ Our Light), various leaders at the UMD’s cathedral church (Church of the Resurrection) and the UMD’s church-planting arm (The Greenhouse Movement), and a significant portion of the top leadership of the Diocese, including the Bishop himself. It is therefore essential to a thorough investigation that all records and communications among any and all of those entities be made available to the investigator.
Without waiving privilege, there is no way to, as Archbishop Beach says, “walk in the light” (1 John 1:7) and “conduct ourselves in a manner worthy of the gospel of Christ.” (Phil. 1:27)
If the ACNA Province, the Upper Midwest Diocese, Church of the Resurrection, The Greenhouse Movement, and Christ Our Light have nothing to hide, then there is no reason they need to retain attorney-client privilege.
What waiving attorney-client privilege risks:
According to Rachael Denhollander, the risk to waiving attorney-client privilege is:
“None. Unless you've created liability. Literally, there is only a risk if you've done really bad things and hurt people.
Because this is the actual issue with waiver: Insurance companies usually have boilerplate provisions that say if you don't litigate against claims to the fullest (even if you know darn well that you're at fault), or if you waive, they don't have to pay out the policy.
So. . .The risk with waiver is that your insurance company's policy won't kick in if you did really bad things, hurt people, and get caught.
You are risking insurance funds with waiver. That. Is. It.”
The bottom line, then, is insurance proceeds – in other words, money.
Conclusion
It is important for the public to understand that any sexual abuse and mishandling within the Upper Midwest Diocese, Church of the Resurrection, Christ Our Light, or The Greenhouse Movement carries potential legal ramifications for the Province as well. The ACNA therefore has a vested interest in minimizing whatever liability this investigation might uncover.
Three of the remaining five members of the Provincial Response Team work directly for the Province (the “client” in this investigation) and the other two are an ACNA bishop and an ACNA Executive Committee member. Consequently, it comes as no surprise to survivors that the PRT is refusing to waive attorney-client privilege or to disclose their letter of engagement (investigation contract) with Husch Blackwell.
Survivors know that they have spoken truthfully about their abuse and the church’s subsequent mishandling. They also know that there is likely even more serious misconduct and mishandling than what they are currently aware of. Only a truly independent investigation, carried out with the waiving of attorney-client privilege, will uncover the full depth of what has happened. This is what the church desperately needs. It is the only hope for true accountability, justice, and healing.