The Tribune

By NATARIO McKENZIE

Tribune Business Reporter

nmckenzie@tribunemedia.net

A former Bar Association president yesterday expressed 'concern' over the Financial Transactions Reporting Act's (FTRA) potential to breach attorney-client privilege, warning: "That's the beginning of a slippery slope."

Wayne Munroe QC told Tribune Business that some parts of the legislation have never been a problem for attorneys, but expressed concern over the treatment of attorney-client privilege.

While giving a recent overview of the FTRA, Attorney General Carl Bethel QC said it was expected that lawyer-client privilege will be kept within due bounds. He added that attorneys and accountants are now being looked upon as 'financial institutions', having been previously designated as Non-Financial Businesses and Professions (DNFBPs).

Mr Bethel said lawyers, accountants and certain other professionals merely have duties of customer due diligence, and possibly making Suspicious Transaction Reports (STRs).

"Even before the amendments, lawyers were defined as financial institutions for some purposes, and that is not an issue with lawyers per se. Some parts of the financial legislation have never been a problem for lawyers. For instance, suspicious transactions reporting," said Mr Munroe.

"The only issue for lawyers is the concept of attorney-client privilege because it is the client's privilege. For instance, a client can't use a lawyer to facilitate a criminal transaction because attorney-client privilege doesn't apply to that. You can make a suspicious transaction report on that basis.

"Simply permitting the Compliance Commission to come in and look at your records; that's not permitted. Attorney-client privilege says who is my client is a matter of privilege. If, for instance, Oprah Winfrey is my client, she has a right for no one to know that other than with her permission. The ability to have onsite inspection might offend attorney-client privilege."

Mr Munroe noted that in Canada, attorney-client privilege has been defined as a human right. "The challenge is: Can you have on-site inspection of lawyers without breaching attorney-client privilege," he said. "I don't know of any country where it happens. That's the main concern.

"It would definitely be an issue because in Canada they define attorney-client privilege as a fundamental human right, and so why would a fundamental human right of people who consult Bahamian lawyers be any different than people who consult American lawyers or Canadian lawyers or English lawyers. That's the beginning of a slippery slope. If you could break attorney-client privileges for these matters, where would you stop?"

Mr Bethel noted during his presentation that it had been suggested in a meeting with the Bar Council that the Canada issue be looked at. Mr Bethel suggested, however, that Canada and the Bahamas should be looked at differently.

He said: "The reality is that Canada is a country with enormous natural resources, 40-50 million people, and a standing army, navy and air force. They do not need the world as much as we do. We have an entirely open economy. We are an integrated part of the world, and we are very small. We do not have the luxury that a Canada can enjoy."

The Attorney General added: "I know that there has been an issue between the Bar Association and the Compliance Commission. But unfortunately, under the new law, this must be resolved in favour of a co-operative relationship between the profession and the Commission.

"In this regard, major law firms will be expected to hire compliance officers. In smaller law firms, a senior partner can be nominated for this role. And in one-person law firms, the sole attorney can serve as the compliance officer."