The Bahamian Supreme Court will next Monday hear the constitutional case brought by lawyers Maurice O. Glinton and Leandra Esfakis. The two are seeking to overturn financial legislation introduced by the previous government in 2000, on the grounds that it compromises lawyers’ rights to protect client confidentiality and breaches other fundamental freedoms.
The lawyers are being supported in their action by the Bahamas Bar Association.
The initial application was made by the local lawyers in protest against the damage done by the new legislation to established principles of privacy and professional privilege. In effect, the litigants complained, the new laws inappropriately designated law firms as financial services institutions, at least for the purposes of regulation by the Financial Intelligence Unit (FIU). Glinton and Esfakis, supported by the Bar Association, had claimed that because the legislation subjected “financial services providers” (including lawyers) to routine inspection of their offices and client lists, this placed the lawyer in direct conflict with his or her sworn duty to protect client confidentiality.
The Bar Council is meeting with the compliance commission this week to discuss the controversial issue of on-site inspections, which it argues are a requirement not imposed by regulators on lawyers in OECD member states.
The litigants in this case have also pointed to numerous other instances throughout the Commonwealth where governments’ attempts to ride rough-shod over client confidentiality rules have been shot down by the courts.
Dr Gilbert NMO Morris, former head of the Bahamian Nassau Institute pointed to cases in Canada and Bermuda in a critique of the recent financial services laws last year:
“I am not alone in suggesting that the 11 pieces of legislation with which we are concerned here are a riot of unconstitutionality,” Morris commented.
“In Federation of Law Societies of Canada v. Attorney General of Canada and The Law Society of British Columbia v. Attorney General of Canada, 2001 BCSC 1593, the Canadian courts demolished the government’s position by dis-applying the sections of their Acts which compelled lawyers to reveal client information.
“In Bermuda the Supreme Court in Re an Application by Braswell and Others ITLR (2000) rejected the government’s position that it could interfere with lawyer/client privilege by declaring it not merely a right, but a fundamental human right,” he observed.
The importance of this case, and others like it, is considerable, since it brings traditional common law concepts into conflict with prevailing international morality, in the wake of events such as 9/11. The outcome remains uncertain, however.
By Mike Godfrey, Tax-News.com
