Tue | Oct 17, 2017

Gordon Robinson | Courting controversy

Published:Sunday | May 14, 2017 | 12:00 AM

Lawyers are their own worst enemies. Except, perhaps, for Booklist Boyne, who converted a simple difference in perspective between two of my favourite ladies, columnist Patria-Kaye Aarons and advocate Valerie Neita-Robertson, AND a well-deserved rebuke of the US Embassy by Frank Phipps into excuses for an absurd attack against two of Jamaica's best, most respected lawyers. Words like "reflexive, glandular, unreasoned, irrational, reckless, and vacuous" were trotted out in relation to Frank and "irrelevant and obfuscatory" were thrown at Valerie.

Well, blow me down! Had any of us used those words to describe anything written by Ian Boring, he'd have declared us 'uncivil' and hidden behind his own disingenuous declaration to disguise his inability to craft a coherent reply.

C'mon, Booklist! Valerie only asserted that lawyers aren't eyewitnesses and, therefore, don't know their clients are guilty and tried to educate Patria as to why a lawyer's perspective must be different from someone who never attended law school. Frank only highlighted the obvious, which is that it's improper to impugn any profession by announcing selected suspects' occupation long before a single charge is laid. Both viewpoints seem impeccable to me.

Patria's perspective is also justified because although no real lawyer will admit it, lawyers use whatever strategy they can (legally) to win a case. Patria used a simple shoplifting example, while Valerie, to make her point more starkly, used murder. Their perspectives differ but don't really conflict. Only Booklist, whose intellectual clumsiness evokes visions of a man unable to work out how to sit the correct way on a toilet seat, could create such a cyclonic storm in such a fragile teacup.

There are more serious issues of concern about lawyers highlighted by recent high-profile strikings off by the General Legal Council (GLC) for alleged fiscal hanky-panky. Things have worsened for lawyers with their inclusion in Jamaica's anti-money-laundering regime (AML) among Designated Non-financial Businesses and Professions.

After initially falling asleep on the job, the Jamaican Bar Association was galvanised into action and filed a constitutional claim based, inter alia, on the blatant attack on legal professional privilege (LPP) and the independence of the Bar.

Recently, the Full Court, in a 144-page opinion, which, although often repetitive, set out the court's reasoning with admirable clarity, refused to issue the declarations sought. I won't give my view of the soundness of the court's reasoning as I understand an appeal has been filed, and so the issues are very much alive. All I'll say is that I believe these issues to be so important that nothing short of a judgment from Jamaica's highest court should satisfy all concerned.

 

THREAT TO THE BAN

 

However, I do have more philosophical than legalistic views on the concept. First, I note the back-door exit that's been created to the 'guaranteed' rights in Jamaica's new Charter of Rights permitting Parliament to abrogate, abridge, or infringe those fundamental rights "only as may be demonstrably justified in a free and democratic society".

1. The alleged infringement won't escape sanction because it's "justified" (maybe by results). It must be "demonstrably" justified. In times past, a PM need only say "national security" to end enquiry. Now, a Constitutional Court may require a PM to explain, in camera, but explain he must;

2. The "society" mentioned should be one with Jamaica's peculiarities (where, for example, 'informa fi dead'), not the USA's.

- Hypothetically, the USA may have a serious problem with immigration of Muslims, with a hostile religion. In addition to travel bans, the USA might see Jamaica's proximity as a possible Muslim loophole threat to the ban and insist that Jamaica pass similar laws restricting Muslim entry or even the religion itself.

- This would infringe Jamaica's Constitution. However, under threat of international sanction, Jamaica's executive might sign a treaty to that effect, and, acting as the executive's rubber stamp, Parliament might pass the required laws.

- If the Muslim community in Jamaica should bring a constitutional claim against this absurdity born of international bullying, a court must decide whether Jamaica has a Muslim problem that would necessitate the abrogation of religious freedoms, NOT whether we were politically or tactically correct to support international allies whose problem it is.

THIS is why judicial independence (and its corollary, the independence of the Bar) is so crucial to our young democracy. THIS is why it's so absurd for justice ministers to run around baying like hyenas about punishment for allegedly delinquent judges. Governments may bow to political or other pressures, but the court mustn't. It's not only our last bastion against government excess, but, ironically, it protects government against international bullies who government can tell, "I tried. The court blocked me" - EXACTLY as US federal courts recently blocked POTUS's Muslim travel bans.

I've a simple philosophical solution to all this apparent complexity. Traditionally, lawyers, but especially real-estate lawyers, consider it an absolute necessity to keep clients' funds. This is actually unnecessary.

Why should lawyers be paid anything except their fees? Deposits (less stamping fees, etc) can be paid directly to vendors. After due diligence, the parties can meet at the vendor's lawyer's office and exchange title/registrable transfer for a manager's cheque. For cash sales, it only takes an escrow account with the bank as escrow agent to settle disputes. WHY DO LAWYERS HAVE TO RINSE CLIENTS' MONEY?

This simple rule would eliminate all cases of lawyers not accounting to clients for funds in their custody. Lawyers couldn't be accused of aiding and abetting money-laundering since their only inputs would be legal advice and legal representation (e.g., contract terms/title requisitions). Separating lawyers from clients' funds would expose the artificiality of the AML distinction between conveyancing and litigation lawyers.

 

THE THIN EDGE

 

Without clients' money in their bank accounts, ALL lawyers would do identical work, namely, rendering privileged advice for clients and representing them to ensure that their legal rights are secure. Maybe we'd notice the significant percentage of lawsuits arising out of real-estate transactions. The GLC, in its 2014 AML Guidelines for the Profession, answered the question, "Why should attorneys be regulated?" by writing:

"In evaluating risks and vulnerable activities, FATF [Financial Action Task Force] has found that attorneys are susceptible to being used not only in the layering and integration stages of money laundering ... but also as a means to disguise the origin of funds before placing them into the financial system."

Why has the simple solution of forcing money-launderers to put funds directly into the financial system by separating lawyers from clients' funds evaded all governments involved? GLC guidelines justify lawyers' inclusion in the AML regime despite the strictures of LPP as follows:

"The attorney should, however, be mindful that LPP and any duty of confidentiality cannot be relied on to shelter an attorney who participates in criminal conduct, nor can LPP be relied on by a client where advice is sought in respect of the commission of an unlawful act."

But these can't possibly be the reasons for inclusion under the POCA rules since NO RULE can force an attorney to make a report incriminating himself in criminal activity, and there has NEVER been a problem reporting a client who discloses he's about to commit a crime. So, where's the beef?

Elementary, my dear Watson. This egregious invasion of citizens' privacy has little to do with money laundering. It has everything to do with law enforcement's general incompetence; the perception that crooked lawyers are forever huddled with clients planning illegal coups; and the irresistible itch to get inside information on lawyers' clients from lawyers. The REAL purpose of this arbitrary, unjust, nonsensical law is to convert lawyers into confidential informants for the police.

It begins, innocently enough, with the hoisting of a kite. Conveyancing lawyers/some company lawyers are used as the thin edge of the wedge. As Sykes J wrote in granting an injunction pending the hearing, "Where are the boundaries?" If they come for conveyancing

/company lawyers and nobody protests, the minister adds all commercial lawyers to the "list of activities", gaining more snitches. If nobody protests, solicitors are next. Then, before you "quint", Counsel will be showing their briefs to persons other than spouses. Soon, Minister adds your parish priest's confessional to a "list of activities". One bright day, Jesus will be mandated to report the content of your private prayer.

Be careful. Democracy, sovereignty, and the rule of law itself are at risk.

Peace and love.

- Gordon Robinson is an attorney-at-law. Email

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