Respect for privilege

On February 4, in a column headlined 'Free up the commission', Peter Espeut attempted to address the issue of legal professional privilege.

Regrettably, he bungled it. His confusion was compounded by falling for the misdirection of trying to identify Manatt, Phelps & Phillips' (MPP) 'real' client.

Espeut wrote: "Harold Brady ... was ... the one who hired Manatt, Phelps & Phillips on behalf of the GOJ, or the JLP ... . Harold Brady is refusing to testify before the commission of enquiry (COE) on the grounds of attorney-client privilege.

"Now if Mr Brady's client is the GOJ, its head ... is the person who established the COE to find out the truth, and I would expect the PM to ... waive any attorney-client privilege [constraining] Mr Brady from telling the country the truth. If Brady's client is the JLP, its leader ... is the person who established the COE to expose the truth, and I would expect the party leader to ... waive any privilege [constraining] Mr Brady from telling the nation the truth."

Putting aside client identity issues for the moment, Espeut, who ought to understand the sanctity of confidentiality, is unfortunately treating attorney-client privilege with a certain laissez-faire. Among the fundamental flaws of this commission's origins is its mandate not only to enquire into the actions of government officials but also those of private citizens (including JLP members) from two nations, which could involve violating the sacred veil of attorney-client privilege. If commissions of enquiry could pronounce on private citizens' conduct, we wouldn't need courts or professional disciplinary tribunals.

No, Peter, we've no right to that particular 'truth'. This unpleasant fact is itself conclusive evidence that government officials, led by 'Driva', handled this affair improperly. Either brilliantly or ineptly, depending on motive, it was so managed to deny Jamaicans access to the whole truth.

But, why are we falling for crude political manipulation and looking to Harold Brady, a private citizen, for 'truth' regarding governmental action? Why aren't we insisting that our elected and appointed public officials disclose that 'truth' or face electoral and other consequences? That would save fortunes spent on this so-called Manatt commission (more like a Madantz commission), which could instead fund investigations into the despicable slaughter of Jamaican citizens in a makeshift abattoir called Tivoli.

But some relish red herring. For them, let's examine this client identity puzzle. It's clear Brady was MPP's only client. MPP's own retainer letter (in part) deliberately ensured this, regardless of his principal's identity:

"For the purposes of this engagement, we will be representing you only and we will not be deemed to represent the interests of any of your ... PRINCIPALS ... ."

So MPP expressly refused to represent whoever was Brady's principal and the notorious footnote is but an illusion. But is that all it is? Why did two experienced law firms make this footnote 'error'?

Contradiction

What are the undisputed facts? To lobby legally, MPP must represent governments. Driva was told this. He "sanctioned the initiative" but paradoxically insisted GOJ couldn't be the client. The retainer letter reflects this. Yet MPP was allowed 'in' by US authorities. Why? How did Driva expect the inherent contradiction between his instructions and US law would be successfully resolved? You decide. Don't expect the Madantz commission to help.

No doubt I'll join the list of villains accused of disrespecting this commission. Well, guilty as charged. This Madantz commission lost my respect when it permitted the scandalous reading, by Daryl Vaz, for the TV cameras, of one litigant's pleas in a pending lawsuit as if they were proven facts and not just bare, contested allegations. Since that document was not prepared by or on behalf of Vaz and was irrelevant to his own involvement (according to him, he was but a chequebook), this blatant pre-empting of a Supreme Court trial appeared to me to be a ploy to prejudice the jury pool for that case. Worse, our lazy, lame-brained media, falling for it hook, line and sinker, 'ran wid it' as 'news'. In my opinion, this was a Madantz commission disrespecting the Supreme Court. Accordingly, it gets no respect from me.

And so, all of Wonderland cried out: "Why won't the Jabberwocky jabber? Is his tongue tied? Why won't he wock?"

"... Said I'd like to know where, you got the notion

To wock the boat, don't wock the boat, baby

Wock the boat, don't tip the boat over

Wock the boat, don't wock the boat baby

Wock the boat-t-t-t-t"

Apologies to Hues Corporation for butchering their lyrics to suit a little girl named Alice with a tied tongue.

Peace and love.

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