Panama Papers: Is client confidentiality sometimes worth breaking?
Kerry Underwood considers that SRA guidance does not go far enough in preventing criminal activity
As lawyers, we take client confidentiality as a
given that it is central
to everything that we do - anything said to us, stays with us. Generally, it is very well-observed by all non-legal staff as well as lawyers.
The Solicitors Regulation Authority (SRA) guidance says: 'Protection of confidential information is a fundamental feature of your relationship with clients. It exists as an obligation both as a matter of the common law and as a matter of conduct.'
The SRA Code of Conduct contains similar terms.
There are limited exceptions relating to terrorism, danger
to children, and revealing confidential information to the extent that the 'solicitor believes necessary to prevent a criminal act that the solicitor reasonably believes is likely to result in serious bodily harm.'
Rarely, if ever, in practice will most of us come across such a situation and need to make a decision as to whether to disclose confidential information. If we do, it is more likely to be in the context of money laundering. Supposing a solicitor in this country held the information that the Panamanian firm held. None of the exceptions appear to apply. Is it right that the criminal act exception should apply only if serious bodily harm
is likely to result?
What about if the security of the state is at risk? What about knowledge that banks are fixing interest rates and exchange rates? That is potentially treason, historically regarded as more serious than murder - the death penalty was retained for treason after it was abolished for murder - but it does not result in 'serious bodily harm'.
What about knowledge of a criminal act that would cause hundreds of thousands of people to lose their jobs, or knowledge of illegal tax evasion by multinational companies resulting in cuts to education, health, pensions etc.?
Anything involving treason or the security of the state is unlikely to be protected by the common law, but it is protected by the Code of Conduct.
Relaxing the rule strikes at the very heart of the solicitor-client relationship, but if you know that a whole country - such as Iceland in the Panama Papers case - is being deceived by its prime minister, have you a moral duty to disclose, or not to disclose?
Was the Panamanian leaker committing the worst 'crime' that
a lawyer can commit, or acting in the public interest? Hero or villain?
Should lawyers ever be able to whistleblow on their clients?
Legal confidentiality raises more questions than answers but, perhaps current SRA guidance and its Code of Conduct is a little behind the times and a little parochial, concentrating as it does on individuals and on offences against the person as exceptions, rather than huge multinational corporations and powerful individuals and governments who have the capacity to do far more harm by their criminal acts than any individual.