Chandra writes to BASL over client-professional privilege

nGood governance activist Chandra Jayaratne has written to the Bar Association of Sri Lanka highlighting the urgent need to publicly clarify ‘client-professional privilege’ and associated legal liability of professionals. Following are excerpts of the letter which has been copied to President, Organization of Professional Associations, President, Institute of Chartered Accountants of Sri Lanka, President, Institution of Engineers Sri Lanka, and President, GMOA:

It appears that there is a significant knowledge gap in the understanding by professionals of “client-professional privilege”, especially its definition, scope, extent of application, exemptions, limitations and essential risk mitigation steps to be adopted by professionals. 

There appears to be a further knowledge gap in regard to the legal liability associated with the breach of such professional privilege by professionals in practice and employment; and how such issues arising during the course of the day to day practice of professionals are to be best managed, protecting the interests of all connected direct and indirect stakeholders, including the law enforcement and regulatory authorities.

There appears to be many instances of misinterpretation of client – professional privilege concept, with such misinterpretations being expanded to include instances:

nwhere a professional is required as a part of his/her professional duty to report (example: an auditor required to report to members of the entity who appointed him), or

nwhere reporting to the law enforcement authorities and regulators are required under statute or promulgated regulations,  or 

nwhere required in terms of professional codes of conduct and ethics in reporting to the clients, superiors, relevant professional institutes, law enforcement authorities, (example: Codes of Conduct issued by the relevant Professional Institution dealing with member accountability in instances of non compliance with laws and regulations – NOCLAR),or

nwhere required to do so by the conscience or moral commitments of the professionals,

In the above instances professionals believe that they are compelled by client-professional privilege from taking appropriate response action as required, in the belief that in such every instance they will be in breach of client-professional privilege commitments in taking the due process forward.

The myths surrounding client-professional privilege appears in some uncommon instances, even to convince professionals that they must support a client to misinterpret, misrepresent, window dress, conceal and even falsify or cover up frauds, forgeries, acts of bribery and corruption, other criminal offenses, and accordingly be non transparent in their professional actions, reports/documentation and presentations developed by the professionals. (Example: A legal professional who attests and registers a deed for the acquisition or lease of land or property in the name of a third party other than the real owner, without validating the source and means of the registered owner to acquire same and thus assist in the concealment of the true identity of the real owner).

In such instances as described above, and other instances where a professional concerned is a direct or indirect accessory or associated with the carrying out, window dressing or concealment of a criminal act, such professionals cannot take the position that owing to the client-professional privilege restrictions applying to professionals, he/she was helpless, innocent and remains protected and exempted from reporting the crime to the authorities.

In the context of the above, I appeal to you and the Bar Association of Sri Lanka, in a joint initiative with the other professional bodies copied in this letter, to review the positions as set out herein before and to take early steps to publicly clarify “client-professional privilege ” and associated legal liability of professionals.