Clients' rights under siege

Bert Samuels, Guest Columnist

Gordon Robinson's piece 'Silent coup against lawyers' in your July 1, 2014 publication must be taken as the beginning of the movement for repeal of the provisions relating to attorneys' duty to report "suspicious transactions" by their clients, under the Proceeds of Crime Act.

Robinson has clearly identified the external forces/agencies that have sought to erode the fundamental rights of the Jamaican citizen, specifically that of the lawyer-client privilege, which we have enjoyed prior to, and after, Independence. I note, with interest, that the Guyanese Bar has not, like us, taken this blow lying down (I am not surprised). Nor am I surprised that there has been a backlash against that independent republic for its failure to coerce its lawyers into being informants against their clients. The law has made it clear that this is not the lawyer's privilege but rather the privilege of the client (potentially all Jamaican citizens).

To explain further, the obligation is so onerous that an attorney's obligation to report a suspicious transaction arises even when he/she has a preliminary interview with a potential client, but determines not to take the case. If information is offered in that discussion - even if no lawyer-client relationship subsequently exists - the attorney has a duty to report anything that falls under the category of "suspicious transaction"!

encroachment on rights

We have already had, in the last five years, an encroachment on citizens' rights at the behest of our Parliament. A court had to strike down Parliament's attempts to tell the judiciary when, and in what circumstances, to grant bail to our citizens, and it cannot go unnoticed that it takes fewer jurors (nine only) to pass a majority verdict leading to 35 years in jail.

Our Parliament has given the prosecution, only, the right to appeal the grant of bail to us, and it is only a matter of time when a competent tribunal finds us 'not guilty' that the prosecution will be allowed to appeal that decision.

The Jamaican Court of Appeal, in December 2007, had to rescue the profession when it overturned the act of the agents of the Jamaican State at the request of a First-World state to carry out a forced search of the offices of more than five lawyers. The police removed, amid the protests of said lawyers, hundreds of clients' files and, in defiance of the court's order, have continued to refuse to return the files up to the time of my writing this article!

In its judgment declaring the search totally unfounded and illegal, the Court of Appeal relied heavily on the Privy Council's decision in the case of R v Derby Magistrate's Court, Ex P B 1996 1AC 487 regarding lawyer-client privilege. The judgment of Justice of Appeal Panton (as he then was) quoted extensively the pronouncements in the Derby case. Three quotes on lawyer-client privilege are worthy of your readers' attention:

(1) "It is of course well established that the privilege belongs to the client and not to his lawyer, and that it may not be waived by the lawyer without his client's consent."

(2) "The drawback (to making exceptions to the absolute rule regarding lawyer-client privilege) ... is that once any exception to the general rule is allowed, the client's confidence is necessarily lost. The solicitor, instead of being able to tell his client that anything the client might say would never in any circumstances be revealed without his consent, would have to qualify his assurance. He would have to tell the client that his confidence might be broken in some future case if the court were to hold that he no longer had 'any recognisable interest' in asserting his privilege. One can see at once that the purpose of the privilege would thereby be undermined."

(3) "A lawyer must be able to give his client an unqualified assurance, not only that what passes between them shall never be revealed without his consent in any circumstances, but that should he consent in future to disclosure for a limited purpose, those limits will be respected."

I trust that the principles accepted by our Court of Appeal in 2007 in the Derby case will be restored and no attempt to whittle it away will be entertained.

Gordon's reasoned and well-informed article stands as an unfortunate obituary to the slaying of the profession of which I have always been proud to be part.

Bert Samuels is an attorney-at-law. Email feedback to columns@gleanerjm.com and bert.samuels@gmail.com.