A historic constitutional case will be heard next Monday by the Court of Appeal when lawyers will seek to overturn the series of financial laws enacted by the government in 2000 on the ground they violate fundamental rights and freedoms.
The Bar Association is supporting an action filed by independent attorneys Maurice Glinton and Leandra Esfakis in December, 2001.
The association says the laws violate the individual's right to legal professional privilege οΎ— the right of a client to keep information given to an attorney confidential.
However, the Bar Association also points out that a client is not entitled to claim such privilege in order to cover up or facilitate a crime.
The financial laws created a compliance commission which is required to inspect the premises of persons defined as "financial and corporate service providers," at least once a year. That definition includes attorneys.
Lawyers are required by the legislation to collect information on their client, and provide it to the inspectors. The inspector may also ask for additional information. The job of inspecting has been delegated to a list of chartered accountants, and the attorney is required to pay the accountants' fees for conducting the inspection.
The plaintiffs and the Bar maintain that these provisions violate Articles 20 (the right to the protection of the law and the presumption of innocence), 21 (the right to protection from search of your person and entry on your premises), and 23 (the right to freedom of expression and to prevent disclosure of information received in confidence) of the constitution, among others.
Meanwhile, the Bar Council is meeting with the compliance commission today, to discuss its position on the issue of legal professional privilege and "on-site
inspections." The commission has told all law offices they must be inspected by July 31, but the Bar says it will discipline any attorney who complies with the commission's demand.
It also argues that the power to conduct searches of lawyers' offices does not exist in any of the OECD countries which inspired our financial legislation in the first place. And legislative provisions which infringe on legal professional privilege in other commonwealth countries have been struck down over the past year. "To my knowledge," one lawyer told the Guardian, "there is no compliance commission in any other part of the world."
Editorial, The Nassau Guardian
