20 August, 2017

The Urgent Need To Publicly Clarify “Client-Professional Privilege”

By Chandra Jayaratne

Chandra Jayaratne

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).

President,

Bar Association of Sri Lanka,

Dear Sir,

The Urgent Need to Publicly Clarify “Client-Professional Privilege ” and Associated Legal Liability of Professionals

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:

-where 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

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

-where 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

-where 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.

Yours Sincerely,

Chandra Jayaratne

cc. President, Organization of Professional Associations,

      President, Institute of Chartered Accountants of Sri Lanka,

      President, Institution of Engine3rs Sri Lanka,

      President, GMOA

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Latest comments

  • 0
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    Mr. Chandra Jayaratne: does your organization has a policy to chase off dishonest professionals who engage in thefts, corruptions etc., etc., what ever the names are. My exact question is what does your professional association’s decision with respect to I Know Nothing RAVI and his frauds, taking bribes, money laundering, probably violations of financial rules including those of the govt, and dishonesty ? Are your organization respectable, law abiding and accountable oprganizations or those are also just like the people who are members and associated with.

  • 1
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    Who is a Professional? Professional is someone recognised by a Professional body and not a person with a degree from a University. According to Law use to procure contracts professionals engaged in contract administration are responsible to up-keep the professional ethics of his professional body. Client relationship exclude criminal activities such as corrupt action or any other action not meeting the normal or natural justice of the country if he is a proper professional.

  • 0
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    Mr Jayarathne: I listened to one TV program and You said, recently, you introduced international standards to professional associations I think you must chase out ” I know Nothing RAVI”. I think, govt will not chase out RK. the reason is Arjun Mahendran did it Because IT is Ranil wickrmasinghe who wanted it and Malik Smarawickrama supervising it. that is why he attended a meeting that should not have met. Arjun Mahendran has said, he did it becuase that is what Ranil wanted. So, Arjun Mahendran can be prosecuted only for not being professional. RK doe snot go because with that Ranil Have to go and MaliS and KAbir HAsim have to go. I think, As MY3 can not take decision, it is the AG who should ask MY3 to fire RaviK. I hope that happens. Even if RK is fired, the investigations should not stop. Investigation was about bond scam and other illegal and irregularities. So, the primary dealers donating luxury houses found. there are more like this definitely. Govt should recover what is earned by Perpetual Treasuries. Because, it is money from different govt institutions. Ranil did not spend that money. Instead, he spent money given by Daya Gamage. for that, they both got minister posts.

  • 0
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    The courts are filled by innocent people looking for justice in most instances lawyers fail to give the right advice, create new cases by misrepresenting the truth, waiting till the last moment to submit documentation, manipulate to delay decisions etc. If this country is to improve lawyers must be disciplined and be responsible for their advice. Rule of proxy must be abandoned as it safeguards the illegal practices of the lawyers.

  • 0
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    Chandra Jayaratne
    We the layman (aka silent majority) always thought of “Client-Professional Privilege” as a legal safe house – to plead sort of diplomatic immunity if convenient.

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