The International Bar Association (IBA) has released a statement in defence of lawyer-client confidentiality, following a number of recent attacks on the principle from high-profile international organisations.
The statement, with forewords by Lord Neuberger, former president of the UK Supreme Court, and Judge Lars Bay Larsen, of the Court of Justice of the European Union, seeks to:
stress the importance of lawyer-client confidentiality in relation to the administration of justice, the independence of the legal profession, and the rule of law; underscore the views of practising lawyers, leading judges, bar associations and law societies around the world regarding the fundamental necessity of lawyer-client confidentiality in a fair and democratic society; highlight the vital role that the retention and protection of lawyer-client confidentiality plays in practice in the public’s perception of the legal profession and their own justice system; and emphasise the risks of disproportionate international reaction to perceived abuse of lawyer-client confidentiality in the facilitation of financial crime. Lord Neuberger wrote in his foreword: “The people responsible for these attacks do not appear to appreciate the essential function performed by the rule of law in ensuring that individual rights and freedoms are protected from the misuse of that same executive political power. Nor do they realise that without these rights and freedoms, any attempts to remedy the world’s problems are doomed to failure. Once the rule of law is seriously undermined, the world will find itself in a dark and dangerous place, and as with the erosion of all such standards, once compromised, it will be very difficult, if not impossible, to restore.”
Judge Bay Larsen stated in his foreword: “The right to independent and confidential legal advice is a fundamental principle in any free and democratic society, and closely linked to the right to a fair trial, and the rule of law. At its most simple, the main beneficiary of the principle is the client who may be under investigation or prosecution by the state. It is the client who would suffer most from a breach of confidentiality between him or her and the client’s lawyer. Yet confidentiality is also a principle that helps to protect the very independence of the legal profession itself.”
International organisations, including the UN High Level Panel on International Financial Accountability, Transparency and Integrity for Achieving the 2030 Agenda (UN FACTI Panel) and the OECD Global Anti-Corruption and Integrity Forum, have recently sought to undermine the principles of lawyer-client confidentiality and the independent regulation of the legal profession, arguing that these core values stand in the way of their efforts to stamp out financial crime.
The OECD Global Anti-Corruption and Integrity Forum claim that “white collar crimes like tax evasion, bribery, and corruption are often concealed through complex legal structures and financial transactions. These crimes, they insist, are ‘facilitated by lawyers, accountants, financial institutions and other “professional enablers” of such crimes”.
The UN FACTI Panel have gone one step further, insisting that “lawyers and law firms often abuse their legal professional privilege […] to assist criminals in money-laundering and other criminal conduct”. The panel added that “self-regulation” of the legal profession “has proved to be insufficient and unreliable” and called for governments to take “responsibility for setting the standards for appropriate conduct”.
IBA president Sternford Moyo said: “Government regulation of the legal profession is not a proposal with which the IBA, as the global voice of the legal profession, can concur. The IBA is committed to the fight against financial crime but providing governments with oversight of the legal profession as a remedy is of great concern.”
He added: “In functioning democracies, an independent legal profession is a much-valued cornerstone of the rule of law. Unfortunately, where governments wish to silence dissent, we have witnessed many instances of the abuse of regulatory power, with lawyers being jailed for carrying out their professional duties, simply because they represent a client who is critical of the government or head of a nation.
An independent legal profession, free from governmental interference, is essential.”