Worrying trends - No. 1 ~ Lawyers as Gate Keepers

One of the most cherished aspects of the legal profession is its obligation to clients of confidentiality.  Almost from time immemorial, confidentiality (legal professional privilege) was drilled into "articled clerks" (as they once were), trainee solicitors (as they now are) and pupil barristers.  Is this important principle under increasing attack?

Writing in the Law Society Gazette 1st November - Jonathan Goldsmith draws attention to how lawyers are gradually being turned into gatekeepers for information they hold about their clients - see Information demands lay siege to confidentiality.  A major breach in the confidentiality of client information came with money laundering legislation which forces lawyers to provide investigators with information.  Two cases - (Michaud and Monaco) - on this are currently before the European Court of Human Rights.

In Patrick Michaud v France, one of the arguments is whether Article 8 (‘Everyone has the right to respect for his private and family life, his home and his correspondence’) has been breached by France when implementing EU money laundering legislation.  Michaud complains that, since a lawyer has to report suspicions relating to people coming for legal assistance, under the threat of disciplinary sanctions if he or she fails to do so, protection of lawyer-client confidentiality is inadequate.



Goldsmith then draws attention to two sets of recommendations.  First, a 2011 report from the International Bank for Reconstruction and Development  which asks policy makers to guard against "unjustified" use of attorney-client privilege.  The report is part of the bank's stolen asset recovery initiative.  Secondly, is the United Nations "Guiding Principles on Business and Human Rights" which requires companies to "know and show" that they are respecting human rights.  Goldsmith questions whether firms can "show" without breaching their obligations to clients.

In all of this Goldsmith sees clear pattern in which lawyers are no longer viewed as professionals dealing individually with clients within a framework of the rule of law, where everyone is entitled to confidential legal advice.  Rather, the lawyer becomes a gatekeeper to secrets which prosecutors wish to access.  This is a future to be guarded against.  Turning a lawyer into a gatekeeper is, Goldsmith claims, to "strip the profession of all context, morality and nuance."   "

"A guardian of client's rights within a balanced and democratic legal system guaranteeing access to justice for all becomes in this new narrative simply a shady bouncer with a key who is barring the door behind which certain information is hidden."

Goldsmith accepts that money laundering, corruption and breaches of human rights are "reprehensible and wrong" but questions whether mere recommendations will eventually lead to legal binding obligations on lawyers.  The history of human nature shows that the one often leads to the other.  "Once lawyers accept his change of role then there will be a flood of demands for access to the information.  That spells the decline of our profession."

Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe.

Materials:

Asset recovery handbook

HMRC - Introduction to the Money Laundering Regulations

UK implementation of money laundering - 2007 Regulations .... 2012 amendment

Law Society - Anti Money laundering  Practice Note

An important appeal:

On 5th-7th November, the Supreme Court heard the appeal in Prudential and another v Special Commissioner of Income Tax and another.  The question is whether legal professional privilege extends to other (such as accountants) who give advice in relation to tax matters.  Judgment is likely in the earlier part of 2013.  See UK Supreme Court blog.