Tichenor deposition reveals possible confict of interest
By Bob Baysinger
November 4, 2003
JEFFERSON CITY – W. Bart Tichenor deposition reveals possible conflict of interest; apparently MBC money paid to friendly’ politicians — a former attorney for the Missouri Baptist Convention and now an attorney for himself and other “amicus curiae" — may be discovering the difficulty for a lawyer to have himself as his client in his crusade against the conservative resurgence that has occurred in the Missouri Baptist Convention (MBC).
Tichenor, a Columbia attorney and former pastor of Little Bonne Femme church, was the first person to be deposed by the Missouri Baptist Convention (MBC) legal team in the suit for declaratory judgment against the five breakaway agencies. Tichenor had filed a brief in the case on behalf of himself and more than 2,000 other persons he solicited to be his clients, in order to permit him to file a “friend of the court" (“amicus curiae") brief in the Cole County Circuit Court action. Tichenor opposes the MBC petition to recover the breakaway agencies. Tichenor faced six hours of intensive questioning by MBC attorney Mike Whitehead July 28.
The Pathway was present at the deposition but was restricted by a court order from discussing the deposition publicly until 21 days after deposition transcripts were received by attorneys.
Tichenor’s potential legal problems stem from his prior work as MBC attorney. Two important duties for any attorney are the duty to maintain confidentiality of client information, and the continuing duty of loyalty to a former client. Simply stated, this means that when an attorney represents one client, he or she always has a duty of loyalty to that client, and he cannot later represent an opposing party against the same client involving similar issues or involving information he obtained during the earlier representation.
In Tichenor’s case, he once worked for the MBC, but now is opposing the convention, on behalf of himself and the “amicus curiae" group which he has enlisted. He has also continued to campaign against the convention on an internet website.
Many Missouri Baptists will remember Tichenor as the man who was often selected as the parliamentarian for the MBC annual meetings from the late 70’s to the early 90’s. His influence in Missouri Baptist life was diminished in the 1990s when Southern Baptist conservatives learned of Tichenor’s involvement with the more liberal elements of Baptist life, including the Baptist Joint Committee on Public Affairs, Americans United for Separation of Church and State, and the Cooperative Baptist Fellowship (CBF).
Whitehead devoted much of the deposition time to questioning Tichenor about his legal and political involvement during the years he also worked for the MBC.
The exchange began with a discussion about a letter Whitehead had sent to Tichenor, informing Tichenor that the MBC and the Executive Board maintains that he had been their attorney in the past and continued to owe them attorney/client (fiduciary) duties.
Tichenor had responded with a letter, denying that he had ever been the MBC’s attorney.
“In response to your letter of May 12th, it is incorrect that I served as an attorney for the Executive Board of the MBC from 1976 until 2001. I was director of moral concerns under a contract from 1985 to February 1992. It is my belief that since February 1992, I have not been retained by the Executive Board to provide any legal services for the board. …I did not provide legal counsel to the convention on legal issues of governance and control of MBC institutions," Tichenor read from his letter during the deposition. “I did not represent the convention on any matter that was subsequently related to the matters at issues in the pending litigation.
Whitehead rejected Tichenor’s response. “For the record, Mr. Tichenor, I’d like to state that the Executive Board and the Missouri Baptist Convention continue to maintain that you have been their attorney in the past on issues substantially related to the issues in this case …," Whitehead said.
“Tell me the earliest date on which you had employment with – for legal services – the Missouri Baptist Convention or the Executive Board?" Whitehead asked.
Tichenor said it was 1985 when he served as the director of moral concerns and legislative liason, but he denied that he had provided legal services before then. Whitehead refreshed Tichenor’s recollection by showing him copies of correspondence and fee statements going back to 1976.
“Let me hand you …and do you recognize those several pages of correspondence regarding legal services you provided in 1976 to the Missouri Baptist Convention?" Whitehead asked.
“I apparently did it. I have no recollection of it before seeing this – this document," Tichenor said.
Next, Whitehead handed Tichenor a Nov. 4, 1976 , letter, with Tichenor agreeing to provide legal services to the MBC on an hourly basis.
And two more letters followed, dated Nov. 8, 1976 , and Nov. 16, 1976 . Both letters were on Tichenor’s letterhead about legal services for the Convention.
“So, Mr. Tichenor, after reviewing those, do you agree that you provided legal services to the Convention as of sometime in 1976?" Whitehead asked.
“Yes," Tichenor responded. “I think my previous answer was that I had no recollection."
Tichenor’s May 2003 letter had denied that he had been retained by the Executive Board to provide legal services since 1992.
“I did not provide legal counsel to the Convention on legal issues of governance and control of MBC institutions. I did not represent the Convention on any matter that was subsequently related to the matters at issues in the pending litigation."
Whitehead again showed him documents and fee statements to prove otherwise. Tichenor had been hired by Jim Hill, Executive Director, to attend meetings in early 2001 about the Baptist Home charter change. Tichenor wrote letters to Hill about those meetings, including a letter dated April 25, 2001 . Tichenor submitted a bill to the Executive Board for $300 captioned “Legal services – Baptist Home meeting," which was paid by the Convention. Whitehead asked Tichenor to admit to representing the Executive Boad at those meetings. Tichenor refused, claiming that he was respresenting Jim Hill as Executive Director and not the Executive Board. Whitehead asked why he would bill and accept payment from the convention for work if he had not done the work as the Convention’s attorney.
Whitehead asked Tichenor to admit to a simple summary of his legal representation. “So, fair to say, then, you worked for the Missouri Baptist Convention Executive Board from 1976 off and on, either on a contract basis or a piecework basis, from 1976 through 2001?" Whitehead continued.
Tichenor replied, “Your characterization as work for – to the extent that it does not imply an existing written contract, that there were occasions in which Dr. (Rheubin L.) South called me and asked me to render legal opinions, yes, I did that."
Whitehead decided to make one more attempt to get a “yes" or “no" answer from Tichenor.
“Do you agree that in 1976, following this letter with Dr. South, you entered into an attorney/client relationship with the Executive Board of the Missouri Baptist Convention?" Whitehead asked.
“I had an attorney/client relationship in 1976 relative to what appears to be, from the documents that you’ve shown me, rendering an opinion concerning a proposed amendment to the Baptist Children’s Home constitution," Tichenor said.
“So your answer is yes, there was an attorney/client relationship," Whitehead said. “Would you answer yes or no — did you have an attorney/client relationship at any time after 1976?"
“I will not answer yes or no," he replied.
Whitehead had another surprise for Tichenor – using Missouri Baptist money to make political contributions.
Whitehead handed Tichenor a copy of a memo he had written to former executive director Don Wideman and Bill Affolter on Nov. 21, 1998 , asking for library expenses and Missouri Bar dues to be paid on his behalf.
“So in addition to providing you with a salary for legal services, the (Missouri Baptist) Convention paid your ( Missouri ) Bar dues, is that correct?" Whitehead asked.
Tichenor agreed that was correct.
Then came another surprise for Tichenor.
“Okay, there was a period of time in 1986 when you made a proposal to obtain money from the convention which you would then pay to political candidates or political representatives as part of your lobbying or legislative consulting services," Whitehead said.
“I recall bringing that subject up and … running it up the flagpole, and nobody saluted," Tichenor answered.
Whitehead reminded Tichenor, however, that there was a salute.
“Do you recall that Dr. South did salute and did agree to make a payment of about $1,200 to you personally for you then to give that to political candidates?" Whitehead said.
Tichenor told Whitehead that he had an advantage with documents that Tichenor hadn’t seen in almost 20 years. Tichenor quickly remembered that none of the money was used to make a contribution to any political candidate.
Whitehead, however, jogged his memory again.
Presenting a document to Tichenor, Whitehead said, “Is that an invoice which was submitted to pay you $1,200?" the attorney asked. “… and the title of the services?"
“It says for payment of political consulting," Tichenor said.
Tichenor added that he never prepared a check request for the political work.
Then came a potential bombshell.
Whitehead, however, presented a copy of another letter to Tichenor to jog his memory. The letter was from Tichenor to former MBC Controller Gary Collins.
Whitehead asked Tichenor to read it:
“I am writing to you relative to the matter of political contributions which I’ll be making personally in the upcoming election," Tichenor began. “I feel that the $1,200 which we have discussed will be sufficient to cover contributions which I would like to make to the individuals in the House and Senate that have been supportive in the past … . Prior to actually making contributions, I would like to visit with you relative to individuals which I’ll be making contributions to … ."
And just to make certain, Whitehead pressed Tichenor for more clarification.
“No reference there to buying lunches or other normal expenses?" Whitehead asked.
“No, there’s not," Tichenor answered.
“I believe your previous testimony today was that you believe if there had been a plan to intentionally channel money to you for the purpose of permitting you to make contributions of MBC funds which the convention could not make directly, that would be an improper scheme?" Whitehead said.
Tichenor replied, “Yes."