Should confidentiality between clients and lawyers remain sacrosanct? The leak of 11.5m documents from Mossack Fonseca puts the issue firmly in the spotlight. As the largest ever such breach of confidentiality, the headlines are compelling, the outrage universal and the condemnation overwhelming.
While the schadenfreude relating to the exposure of tax evaders (and some more serious criminal activity) is understandable, trial by media can never be a substitute for due process. Although some of those identified may well be guilty of alleged criminality, many are not: instead, there is guilt by association.
Another story broke on the same day as the release of the Panama Papers that echoes the Mossack Fonseca debacle, but which provokes a rather different reaction.
New York security firm Flashpoint warned that Russian cyber criminals had targeted 48 prominent law firms, including Allen & Overy, Hogan Lovells, and Freshfields Bruckhaus Deringer, to obtain confidential information about their clients’ M&A activities. Different circumstances, but the same issue: a significant breach of confidentiality.
This time, however, all the victims are entirely innocent. Perhaps inevitably, this story has been overshadowed by its more newsworthy Panama counterpart.
Put confidentiality under the microscope and the average person would commend the Panama papers leak as being in the public interest. But they are equally likely to condemn the Russian cyber attack. The motivation may be different, yet both have the same net effect: destruction of confidentiality.
The issue has recently been topical in other areas too. Last year, the Director of the Serious Fraud Office, David Green QC, wrote an article suggesting that some companies impede their investigations by abusing the privilege of communication with their lawyers. Again, different circumstances, but a related issue.
This abuse extends, he suggested, to the absolute right of Legal Professional Privilege (LPP). which entitles a client to refuse to disclose confidential legal communications to third parties, and to specific Legal Advice Privilege LAP, which protects legal advice that ‘is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context.’
Green said that: ‘The SFO is prepared to challenge head-on the claims of privilege that we believe are ill-founded’. He did not elaborate on which claims are ill-founded, but added that ‘these companies call in outside lawyers…(who) are the first to interview key witnesses at the coal face, then claim privilege: it is absolutely ludicrous.’ External lawyers were, he concluded, ‘effectively ploughing up the crime scene.’
Here, he was referring to the advice of in-house lawyers in matters investigated by the SFO with the privilege attached to the work done both by in-house and external lawyers when they conduct an internal investigation.
It’s emotive language, in which Green’s full frontal attack on confidentiality, or at least the perceived abuse of it, is manifestly well-intentioned when pursuing the interests of justice. At least, as seen through the eyes of the SFO. But not necessarily by the company under investigation. Or indeed, by a neutral judge who may have to decide where the interests of justice lie.
Of course, if there are genuine attempts to thwart an investigation, or even potentially, to pervert the course of justice, then Green’s exasperation is fully justified. Indeed, when I interviewed him last year, his frustration was palpable. It was matched only by his zeal to combat companies ‘that through their lawyers throw every available obstacle in our path.’
He added a stark warning: ‘We have to keep on when our teeth are in their softer parts and we’re not going to let go. They need to understand: we will not let go.’ On the principle of eroding confidentiality and undermining legal rights, the path being pursued by Green might not just be a touch over-zealous, but potentially damaging.
His sabre rattling may be an attempt to force companies under investigation to hand over privileged material voluntarily without the SFO having to make a court application under the “crime exception” rule, which they might be at risk of losing. Green may well regard companies and their lawyers use of privilege as inappropriate. But this view needs to be balanced by respecting the privilege of confidentiality that is an historic right of every citizen under our common law system.
In determining the continued importance of trust between lawyer and client, we should not be blinded by the abuse and excess revealed by the Panama Papers. Instead, we should maintain a balanced perspective and remember that in order to preserve confidence in our lawyers, what we discuss with them should remain confidential, except in the most exceptional circumstances.
Notes to Editors
Dominic Carman is a journalist, writer and legal commentator. www.dominiccarman.com