With client confidentiality seen as a ‘fake excuse’, lawyers have not fared well in the discourse over transparency in a lobbying bill.
I have been following the progress of the UK bill on lobbying (the elegantly named Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Bill). It is causing just the kind of responses from transparency campaigners as its European counterpart – the European Commission’s and European Parliament’s Transparency Register. In both cases, campaigners feel that the initiatives don’t go far enough. They want to see lawyers fully included, on the same basis as others who might lobby. In the UK, it is a case of ‘Bring the lawyers within the jurisdiction of the bill’. At European level, where lawyers are included, they say ‘Make it a level playing field, and don’t let lawyer-client confidentiality be a fake excuse.’
At European level, the campaign has increased in pitch over recent weeks. It began with a prominent article in the New York Times about the activities of US law firms lobbying in Brussels, which was followed by a similar article in the German Der Spiegel. The New York Times article could have been written by one of the anti-lawyer campaigners, and was doubtless influenced by them. This can be seen by the language: the law firms are hiring politicians and officials with ‘fat paychecks’; or the law firms ‘are undercutting efforts to bring more transparency to lobbying in Brussels, citing lawyer-client confidentiality to evade a government-backed but voluntary disclosure effort’. I like the ‘citing’, as if it is not true, backed up immediately by a quote from a public affairs executive accusing the law firms of hiding behind confidentiality. And so on.
The websites of the campaigning groups have also been filled with outrage at any special treatment meted out to lawyers because of the need to uphold lawyer-client confidentiality. Their commentary of course cited the New York Times article. Or urged that politicians and officials from the commission and the parliament should refuse to meet lawyers until their firm has registered. Or lectured on what is and what is not covered by professional secrecy. The intention was to damage our collective reputation, and to undermine the principle of confidentiality.
This increase in level of anti-lawyer emotion did not happen without reason. The commission and the parliament were about to publish recommendations for the review of the register, and in the past few days 30 recommendations have indeed been published.
Interestingly, the EU institutions appear to have withstood the campaigners’ pressure, and come up with a proposal outside the 30 recommendations, but which relates to lawyers nevertheless, as follows: ‘Possibility for [a group which includes lawyers] to solicit an “exception of confidentiality decision” in exceptional cases where they wish to claim, and can justify, the existence of concrete and non-hypothetical risks linked to public divulgation of a specific client identity. The W[orking] G[roup] recognised that such a clause could cause confusion within a non-mandatory system, and that more targeted solutions for law firms could be sought, without encouraging the practice of confidentiality where not applicable.’
I seem to write about one or other aspect of lawyer-client confidentiality nearly every week. Last week, it was the impact on confidentiality of the Snowden revelations. At other times, it arises during discussion of the money-laundering directives, data protection, cloud computing, or the newly named ‘business and human rights’ (formerly known as corporate social responsibility). Each time we have to persuade a new audience of doubters that, no, we are not making up the need for professional secrecy in a democratic society; it does not exist to benefit lawyers but to protect citizens; and yes, the rule of law really requires it. It is tiresome that it is so little understood by otherwise sophisticated people.
Often, the need to defend it arises because of a clash with another admired principle. Here, it conflicts with the good of transparency in political dealings. Elsewhere, it clashes with the need to fight corruption effectively, or with spying to protect national security. We as lawyers cannot be opposed to these other principles. Nor should we permit our own principle of confidentiality to be trampled in implementing the others. Rather, we should seek an appropriate accommodation of our principle with the other, and in all the cases I have mentioned, I believe that accommodation is possible without damaging either one.
Let us hope that a suitable accommodation will therefore be made in future arrangements for lobbying by lawyers.
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs