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Privilege under attack! The IBA to the rescue...

Following a number of attacks made by influential international organisations on the principle of lawyer-client confidentiality, the IBA has released a highly considered statement in defence of that principle.

At least three international organisations have sought to argue that the confidentiality of lawyer-client communications and the independent regulation of legal professionals are proving to be real hurdles which stand in the way of national and international efforts to eradicate financial crime.  In particular, the "UN High Level Panel on International Financial Accountability, Transparency and Integrity for Achieving the 2030 Agenda" has, witheringly, said that "lawyers and law firms often abuse their legal professional privilege [...] to assist criminals in money-laundering and other criminal conduct".  The use of the word "often" is likely to act as a lightning rod for criticism of this UN panel.  

No one is dismissing the fact that there has been, are, and always will be, certain legal professionals who are prepared to assist their clients in criminal endeavours.  That said, to seek to tarnish the legal profession as a whole with such a seemingly indiscriminate and generalised criticism has led the IBA to roll out a team of extremely esteemed lawyers and judges in a specially assembled presidential taskforce to counter what seems to be a wave of attacks on the enshrined principle of legal professional privilege.  

In his foreword to the IBA statement, the Rt Hon Lord David Neuberger (the Former President of the UK's Supreme Court) gave a powerful defence of the rule of law, congratulating the IBA on their statement which explains and justifies the importance of the principle of lawyer-client confidentiality. 

Finally, it should not be forgotten that the principle is not inviolate.  As the IBA statement makes clear: "The protection provided by lawyer-client confidentiality does not apply when a lawyer is knowingly assisting, aiding or abetting the unlawful conduct of his or her clients. In such circumstances, the lawyer would be committing a criminal offence in most jurisdictions."   

This is certainly the case in England, where it is clear that no privilege applies if the communication or document in question came into being for the purpose of furthering a criminal or fraudulent design - the "fraud exception" or "iniquity principle".  Hopefully the relevant organisations temper their attack on this principle, recognising that, as set out in the IBA President's comments "In functioning democracies, an independent legal profession is a much-valued cornerstone of 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. 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" - Judge Lars Bay Larsen, of the Court of Justice of the European Union

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