A report on 17 countries finds that all of them except Pakistan hold lawyers accountable for directly carrying out a corrupting act
WASHINGTON (April 8) – The growth of anti-corruption legislation has imposed new responsibilities on lawyers to report corrupt practices, eroding some of the security in the client-lawyer relationship, a new study has found.
While there is no universal approach to the requirement for lawyers to disclose questionable activities by their clients, the study of 17 countries found that all except Pakistan hold lawyers accountable for directly carrying out a corrupting act and legal professionals could face criminal prosecution if they have a high level of personal involvement.
More complex is the responsibility of a lawyer who knows of or suspects corruption by the client, according to the research report entitled “The Role of Lawyers in the Fight Against Corruption”, conducted by Arnold and Porter and the University of San Andreos in Argentina through the Thomson Reuters Foundation's TrustLaw Connect program .
The majority of respondents in the countries surveyed said there is no general obligation to report a crime. In fact, in Brazil and Argentina reporting could even be a criminal offence if it breaches professional duties to the client.
In contrast, Europe sets a rigorous standard. Under its 2005 anti-money laundering directive, lawyers must report any suspicions of unusual transactions or activities. Also, tipping off a client that a report has been made is a criminal offence.
The UK arguably has the toughest approach of all, criminalising the failure to report suspicions of money laundering, the report said.
However, such obligations run into ethical conflict with the privileged lawyer-client relationship, which is designed to give the client the benefit of full legal counsel.
“The impact of privilege being dismantled by the imposition of anti-corruption legislation will be impossible to predict,” Arnold and Porter wrote in an executive summary to the report.
But this shift in ethical consideration is part of a wider societal trend in which the balance between personal privacy and the influence of the state is changing. Moreover, it is one that is likely to continue, it said.
“With increased globalisation and cross-border trade, it seems likely that more and more countries will follow the trend of increased disclosure, championed by the European Union and the United States,” Arnold and Porter said.
The report was compiled through surveys in France, Argentina, Australia, Brazil, Bulgaria, Chile, France, Germany, Italy, Japan, Mexico, Pakistan, Singapore, Sweden, Switzerland, the United Arab Emirates, the United Kingdom and the United States.
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