Dear Corruption Watch
I am facing allegations of corruption. I need to go to my lawyer, but I’m afraid that if I tell him all the facts he may also think that I have been corrupt.
Can he be compelled to reveal what I tell him? What are his obligations under law and professional ethics? And his public duty? Yours sincerely, Wavering
You should not feel afraid to speak openly and frankly to your lawyer. Whatever you say to your lawyer is strictly confidential. Your lawyer cannot disclose what you tell him without your consent, and, even if he did, what you tell him cannot be used as evidence against you in court. In fact, to ensure that you get the best advice in the circumstances, you should give your lawyer all the facts – including those that may implicate you in corruption. Your lawyer is there to assist you in handling the matter, and cannot do this if he is kept in the dark.
Communications between a lawyer and client are protected by what is known as the ‘legal professional privilege’. Nobody can compel a lawyer to divulge what a client tells him in confidence – not the courts, not SARS, not the police. The confidentiality of lawyer-client communications is essential to ensuring the proper functioning of the legal system. Just imagine, if clients could not speak freely with their lawyers, they would not reveal their full story and so would never get the best defence possible. In these circumstances, there would be no such thing as a fair trial. The law recognises this, and so protects what is shared between lawyers and their clients from compelled disclosure.
There are limits, though, to what the law recognises as privileged legal communication. First, it is only when you seek professional legal advice or assistance that the privilege kicks in. If you have a friend who happens to be a lawyer, the law won’t regard everything you tell him as confidential just because he’s a lawyer. Only communication made to a lawyer in a professional capacity is privileged.
Second, the privilege only covers communications made in confidence. So when you speak to your lawyer, to be absolutely sure, make it clear that what you say is confidential.
Third – and take careful note here – the privilege does not apply if you seek legal advice to commit or cover-up a crime. This applies even if your lawyer is ignorant of the purpose for which his advice is wanted. The courts have made it very clear: furthering any criminal purpose falls outside the scope of a lawyer’s ‘professional employment’ and so will never be covered by the legal professional privilege.
If you have committed corruption, your lawyer is likely to advise you to report the crime and to consider entering into a plea bargain with the state. This may well be your best option, and you should discuss it freely with your lawyer. In terms of sentencing guidelines, the crime of corruption carries a mandatory 15 year jail term for first-time offenders where the value of the crime exceeds R500,000. This long-term imprisonment can be negotiated into a reduced sentence, and perhaps only a fine, in exchange for full cooperation and disclosure. You should consider yourself fortunate to even have this option. Recently in Nigeria, the Chief Justice banned plea bargaining for corruption cases in that country. He found that it provided too soft a landing for “criminals who loot the treasury entrusted to them”.
Take a stand and report corruption. This article originally appeared in the Sunday Times Business Times on 8 April 2012.