In a free and democratic society, public trust in the legal profession depends on clients feeling confident that what they tell their lawyers will not be revealed without their consent. Lawyers owe duties to honour and protect their clients’ rights to confidentiality and privilege, which form part of the clients’ constitutionally guaranteed right to privacy.
To reduce crime, Jamaica, like many other countries, has committed to the fight against money laundering. As part of that fight, the anti-money laundering regime, and specifically the Proceeds of Crime Act, places obligations on lawyers in certain circumstances (1) to report suspicious transactions (ultimately to the Financial Investigations Division of the Ministry of Finance and Planning) and (2) to consent to the General Legal Council (as the competent authority that regulates the legal profession) accessing their offices to examine and take copies of information or documents in order to ensure compliance with the regime. These relatively new statutory obligations imposed on attorneys infringe on the clients’ constitutional right to privacy. The question therefore arose – is that infringement demonstrably justified?
Unless the infringement on the constitutional right to privacy by certain sections of the Proceeds of Crime Act was demonstrably justified, then those sections were liable to be declared void by the courts. In its February 2023 judgment in the appeals brought by the Attorney General of Jamaica and the General Legal Council against the Jamaican Bar Association, the Judicial Committee of the Privy Council held that the infringement was demonstrably justified. In so finding, the Privy Council noted, among other things, that:
- The Proceeds of Crime Act applies only to a subset of lawyers who engage in six specified activities, namely:
- purchasing or selling real estate,
- managing money, securities, or other assets,
- managing bank accounts or savings accounts of any kind, or securities accounts,
- organizing contributions for the creation, operation, or management of companies
- creating, operating, or managing a legal person or legal arrangement (such as a trust or settlement)
- purchasing or selling a business entity.
- The anti-money laundering regime only infringes on lawyer-client confidentiality and does not interfere with legal professional privilege, which is of far greater public importance;
- There is no obligation on attorneys to disclose privileged information or even the fact that it exists;
- The anti-money laundering regime contains safeguards to mitigate against the disclosure of privileged information;
- The invasion on lawyer-client confidentiality was proportionate given the objective of combatting money laundering;
- Where necessary, attorneys can obtain advice from a specialist attorney to determine whether they have an obligation to disclose certain confidential information;
- In appropriate cases, lawyers aggrieved by decisions of the General Legal Council may challenge those decisions in court by way of judicial review; and
- The decision to impose criminal sanctions on attorneys for non-compliance with the anti-money laundering regime was an option available to Parliament and did not render the regime unconstitutional.
Confidentiality vs Privilege
In quotidian life, many people use the terms ‘privileged’ and ‘confidential’ interchangeably. However, although there is some overlap between the two terms, they are not identical and the distinction between the two is central to the Privy Council’s finding that the infringement on privacy is demonstrably justified.
Attorney-client confidentiality is the attorney’s obligation “to keep confidential all dealings with and information about the client, derived from the discharge by the attorney of the retainer by the client”. Legal professional privilege is the client’s right, and the attorney’s duty, not to disclose information and documents concerning either the giving (or seeking) of legal advice or the conduct of litigation.
Confidentiality, therefore, is wider in scope than privilege. The protection confidentiality affords is qualified. In contrast, the protection legal professional privilege confers is absolute. In civil proceedings, there are circumstances in which one can demand that unprivileged confidential information be provided for inspection, provided that the documents are directly relevant to the proceedings and will serve to assist the courts in ascertaining the truth. Confidential information may also inform questions put to a witness in cross-examination, and unless the answer is privileged, confidentiality alone will generally not be a basis for the witness to refuse to answer. The law confers no protection to documents or information generated in furtherance of a criminal purpose.
So, how safe is your secret? The obligation to disclose confidential information will only apply to attorneys who practise any of the six specified activities mentioned earlier. If your attorney knows or believes that you are engaged in a transaction that could constitute money laundering, or he has reasonable grounds to so believe, then, once the information did not come to him in privileged circumstances, he will be required to make a suspicious transaction report. Also, to show compliance with the statutory anti-money laundering regime and avoid exposure to criminal sanctions, lawyers will, upon receiving notice, generally consent to the General Legal Council inspecting unprivileged confidential information and documents at their offices. While lawyers are to keep all information safe, the law protects privileged information more than confidential information, hence there is no obligation for the attorney to disclose privileged information. If the information or documents are generated to commit a crime or fraud, such as money laundering, then that information would not be protected by confidentiality or privilege. If there is doubt as to whether certain information is privileged or not, it may be prudent to consult a specialist attorney.
Jacob Phillips is an Associate in Myers, Fletcher & Gordon’s Litigation Department. He may be contacted via jacob.phillips@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.
