Green said that: “The SFO is prepared to challenge head-on the claims of privilege that we believe are ill-founded.” He did not elaborate on which claims are ill-founded, but added that “these companies call in outside lawyers…(who) are the first to interview key witnesses at the coal face, then claim privilege: it is absolutely ludicrous”. External lawyers were, he concluded, “effectively ploughing up the crime scene”.
Here, he was referring to the advice of in-house lawyers in matters investigated by the SFO with the privilege attached to the work done both by in-house and external lawyers when they conduct an internal investigation.
It is emotive language, in which Green’s full frontal attack on confidentiality, or at least the perceived abuse of it, is manifestly well-intentioned when pursuing the interests of justice. At least, as seen through the eyes of the SFO. But not necessarily by the company under investigation. Or indeed, by a neutral judge who may have to decide where the interests of justice lie.
Of course, if there are genuine attempts to thwart an investigation, or even potentially, to pervert the course of justice, then Green’s exasperation is fully justified. Indeed, when I interviewed him last year, his frustration was palpable. It was matched only by his zeal to combat companies ‘that through their lawyers throw every available obstacle in our path.’
He added a stark warning: “We have to keep on when our teeth are in their softer parts and we’re not going to let go. They need to understand: we will not let go.” On the principle of eroding confidentiality and undermining legal rights, the path being pursued by Green might not just be a touch over-zealous, but potentially damaging.
His sabre rattling may be an attempt to force companies under investigation to hand over privileged material voluntarily without the SFO having to make a court application under the “crime exception” rule, which they might be at risk of losing. Green may well regard companies and their lawyers use of privilege as inappropriate. But this view needs to be balanced by respecting the privilege of confidentiality that is an historic right of every citizen under our Common Law system.
In determining the continued importance of trust between lawyer and client, we should not be blinded by the abuse and excess revealed by the Panama Papers. Instead, we should maintain a balanced perspective and remember that in order to preserve confidence in our lawyers, what we discuss with them should remain confidential, except in the most exceptional circumstances.