Orville Taylor | No client/lawyer Privy-lege counsel

Stupidly, she stole about $5 million from her employers. Within a few months, her crime was discovered. In sheer panic, she makes partial restitution. However, she had already spent $750,000 on a car. An additional $200,000 had been put in an account to surprise her struggling mother with a birthday gift.

Penniless and sitting in the cold cell, with deep remorse, while ‘Mr Susan’ keeps telling her how attractive she is, she still can’t believe that despite her early guilty plea and use of a legal legend, she still got a paragraph to serve, instead of a non-custodial sentence.

After two years for the only crime she has ever committed, her actions have only benefited the attorney, who took home close to $1 million in fees.

Months later, this same attorney is giving a keynote speech about the level of crime in the society and is even taking potshots at the government’s crime plan. Still smelling my vomit brought up by sitting through the stench of hypocrisy, I am happy that the Privy Council has once and for all ruled. Declaring that “… that the requirement for attorneys to report breaches of the Proceeds of Crime Act is demonstrably justified and the regime does not breach constitutional rights”, it settles the argument that there is an inviolably absolute client/lawyer privilege.

LEGALLY BOUND

Now, attorneys are duty and legally bound to report all suspicious financial transactions, which their clients have entered into, presumably with them.

Doubtless some very close people to me and dearest of friends for decades are going to be affected by this ruling. Yet I find no discord with the decision, because in my considered opinion it is ‘good law’. For the non-lawyers among us like myself, the expression simply means that the decision is a sound judgment, based on the legal facts and parameters. As to whether or not it is just, is another matter. In my humble opinion, it is both.

Using the fine-toothed comb that clearly has no other utility to me, I have scrupulously walked through the Jamaican Constitution. As inconvenient as it might be, there is no sacrosanct constitutional right as regards privacy between an attorney and the client. True, it is a precept of the legal profession. However, even if such right to secrecy were to exist, any first-year legal student, or someone who leaned against the door when law lectures were being conducted, clearly understands that there are circumstances when the ultimate good of the nation trumps any secret that a lawyer is keeping for his client.

Let us walk through the logic of this. If a victim has been abducted, and the kidnapper goes to his attorney and says, “I have a person here and I suspect that I may have to kill her if the ransom is not paid.” And he admits to the lawyer that she is being concealed in a particular warehouse. Then he follows up on the threat and kills the captive. How would you sleep, counsel?

Beyond this moral dilemma, there is already one piece of legislation that removes the cloak of protection an attorney could give to a criminal. Our Child Care and Protection Act (CCPA) makes it indubitably clear that any person, and that includes pastors, doctors and lawyers, who attempts to conceal any likely crime against a child, even if it is deduced and not directly told by the client; then he himself is guilty of an offence under the CCPA.

NEVER HEARD

Maybe my memory is failing me but, given that we can have as many as 300 cases of child abuse being reported and investigated each year; how come I have never heard one single attorney argue that she should not be duty bound under the act to snitch on her client? Many a child molester is a murderer too. Indeed, under the related Child Pornography (Prevention) Act 2009, an attorney, having discovered that her client, who is charged for another (unrelated) crime, has child porn in his possession, is bound to ‘betray’ him and call the feds. Otherwise, counsel is liable.

There is a recent case where a person was charged for the ironic misnomer, ‘misprision of a felony’, where he decided not to report a major crime which he had knowledge of.

True, I understand that as my brother senior counsel Bert Samuels said, this ruling increases the likelihood of danger, which some attorneys could face, in an ‘informer fi dead’ society. However, prospective clients, knowing fully well that their lawyers could go to prison for money laundering with them, will either have to find other cronies to clean the dough or simply desist.

Thus, I side with King’s Counsel Peter Champagnie, who welcomes the judgment. After all, we should recognise that the rules of the legal profession do not allow lawyers to lie, in any forum. Therefore, implicitly, if an attorney is accepting payment for his services in suspected money, he is already lying, and thus breaching the ethics of his profession.

Still, government must end its discrimination and breach of the Constitution in its administration of legal aid. There are some offences for which an accused cannot access this state benefit. Only the worst of hypocrites in the profession, who might have something to benefit from with this practice, could accept the extrajudicial judgment, in implicitly making a declaration of guilt, simply based on a policeman’s charge.

Let’s see which senior lawyer has enough guts, or other organs in their anatomy, to take on a real constitutional issue.

- Dr Orville Taylor is senior lecturer at the Department of Sociology at The University of the West Indies, a radio talk-show host, and author of ‘Broken Promises, Hearts and Pockets’. Send feedback to columns@gleanerjm.com and tayloronblackline@hotmail.com.