IBA countered criticisms by justifying importance of lawyer-client confidentiality
The International Bar Association (IBA) has responded to some international bodies’ claims that lawyer-client confidentiality prevents them from eradicating financial crime.
Recently, several international bodies, including the United Nations High Level Panel on International Financial Accountability, Transparency and Integrity for Achieving the 2030 Agenda (UN FACTI Panel) and the Organisation for Economic Co-operation and Development (OECD), claimed that lawyer-client confidentiality stands in the way of their efforts to stamp out financial crime.
In particular, the UN FACTI Panel alleged that lawyers and law firms often abuse their legal professional privilege to aid criminals in money laundering and other criminal conduct. The panel further alleged that self-regulation of the legal profession has proved to be “insufficient and unreliable.”
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At the same time, the OECD alleged that crimes, such as tax evasion, bribery and corruption, are usually concealed through complex legal structures and financial transactions and facilitated by lawyers, accountants, financial institutions and other professional enablers.
In a released statement, IBA countered the criticisms by justifying the importance of lawyer-client confidentiality for the administration of justice, independence of the legal profession and the rule of law.
“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,” said Court of Justice of the European Union judge Lars Bay Larsen in the statement foreword. “At its most simple, the main beneficiary of the principle is the client who may be under investigation or prosecution by the state.”
Larsen added that lawyer-client confidentiality helps maintain the legal profession’s independence.
IBA also emphasized the risks of “disproportionate international reaction” to perceived abuse of lawyer-client confidentiality in the facilitation of financial crime.
While IBA is committed to the fight against financial crime, providing governments with oversight of the legal profession as a remedy is of great concern, said IBA president Sternford Moyo. “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,” Moyo added.
According to IBA, it intends to use the statement to initiate a dialogue with the international bodies that have called for “damaging reforms” to the principles of lawyer-client confidentiality and the independent regulation of the legal profession.