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Lawyers to test money law
Conrad Dube, The Zimbabwe Independent
January 14, 2005

http://www.theindependent.co.zw/news/2005/January/Friday14/1422.html

THE Law Society of Zimbabwe has asked the Supreme Court to declare null and void sections of the Bank Use Promotion and Suppression of Money Laundering Act Chapter 24:24 which the lawyers allege are unconstitutional insofar as they seek to impose on legal practitioners disclosure and reporting obligations.

The Law Society says Sections 24, 25, 26, 27, 28 and 29 of the Bank Use Promotion and Suppression of Money Laundering Act are inconsistent with the declaration of rights.

The sections impose on designated institutions recording, reporting and disclosure requirements which effectively require legal practitioners to record information obtained from clients, not for the client’s own use but for use by the government and law enforcement agents.

The sections require lawyers to report suspicious information and large cash transactions, reporting that may serve to incriminate the client. The lawyers are barred from disclosing to client the fact that the information has been disclosed to a third party.

In an application filed in the Supreme Court on Monday this week by lawyers Scanlen & Holderness, the society argues that the disclosure and reporting obligations imposed on designated institutions violate core values of the legal profession, particularly the duty by legal practitioners to observe confidentiality in respect of all communications received by them and the duty to observe attorney and client privilege.

The society argues: "The recording, disclosure and reporting requirements will deter full disclosure of all relevant information by clients to the legal practitioners and will, consequently, interfere with the right to a fair trial in contravention of Section 18 subsection 2 of the constitution. Such interference is not necessary in a democratic society.

"The recording, disclosure and reporting requirements violate the right to privacy and the right not to incriminate oneself."

It further argues that lawyers act as agents of their clients and what they are compelled to disclose is as good as disclosed by their clients.

"Where the information is incriminating, a situation whereby the client effectively incriminates himself, through his agent, is created. This is inconsistent with the right not to incriminate oneself."

The lawyers also claim that these requirements violate the declaration of rights in that core values of the legal profession, which it is enjoined to protect and which values are anchored on the right to freedom of expression, the right to privacy and the right to a fair trial are likely to be breached.

"A breach of core values of the legal profession will breach the declaration of rights in respect of one or all the three rights."

The Law Society further says that if allowed to stand, the requirements will render the cost of legal services unaffordable to the majority of Zimbabweans without adding value to the administration of justice. In other words, the society says, the impact will be entirely negative.

"The financial institutions are themselves designated institutions with recording, disclosure and reporting obligations. Consequently, imposing recording, disclosure and reporting obligations on legal practitioners as well is an unnecessary duplication of the requirements," the society says.

"The recording, reporting and disclosure requirements conscript legal practitioners to act as state agents, contrary to their client’s interests."

It is not necessary, the society further states, to turn lawyers into whistleblowers in order to prevent them from engaging in or assisting in money laundering.

"Lawyer loyalty to clients and independence of the legal profession, two fundamental principles supportive of the rights to privacy, the right to a fair trial and the right to freedom of expression as between lawyers and their clients, are at the root of the success of adversarial type of litigation that takes place in this country. A distinct separation between law enforcement and defence is critical for the success of the adversarial system. Where the defence and the prosecution appear to be merged, the system ceases to function effectively."

The Law Society adds that it is essential that defence lawyers remain defence lawyers. "Setting them up against their client and conscripting them into law enforcement will make them dis-legal, essentially dishonest and generally untrustworthy to the detriment of the legal profession."

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