Gordon Robinson | Who you a call attorney-client?

So the Attorney-General (A.G.) has refused Gleaner’s Access to Information Act request for a copy of his Opinion delivered to the Speaker regarding tabling of Auditor-General (AudGen) reports.

According to Gleaner, admittedly an interested party, A.G’s chambers said:

“We have identified an official document that relate to your request made under the Act, but it is exempt from disclosure under Section 17(a) [exempting documents subject to legal professional privilege]. We are therefore unable to grant access to the official document as the privilege is not ours to waive.”

What privilege?

It’s long established that communications between an attorney and his/her client that were made for the purpose of obtaining legal advice may not be disclosed unless the client consents to the disclosure. So, in this case, who is the attorney and who is the client?

A.G. isn’t a private lawyer. He’s a creature of the Constitution who is mandated by the Constitution (Section 79) to be “the principal legal adviser to the Government of Jamaica (GOJ).” GOJ is led by the Cabinet as “principal instrument of policy and….charged with the general direction and control of the Government of Jamaica [Section 69(2)] .” GOJ includes all offices of Government such as Ministries and Statutory Authorities.

Government. Does. NOT. Include. Parliament!

So, if the Speaker should ask Government’s legal advisor for advice she wouldn’t be doing so as A.G’s client. Based on the fundamental constitutional principle of Separation of Powers, she’d be doing so as a third party to whom A.G. owes no obligation to respond or to maintain any form of confidentiality.

If I’m approached by a friend for legal advice, especially on an obviously sensitive issue, my first request is for $100.00. It’s usually handed over with a quizzical look. I respond “Now I am your Attorney and anything you say to me is privileged.” Any unknown or acquaintance must pay at the going rate.

If an Attorney-at-law isn’t paid by a purported “client” is there a professional attorney-client relationship established with the concomitant legal professional privilege?

I. Don’t. Think. So!

Now what if the Attorney-at-law isn’t in private practice but is enrolled based on a Constitutional appointment that allows him one client only? What if that constitutional officer is paid out of the public purse? Can he charge privately for advice given to a third party who isn’t the sole client (or any of its public sector appendages) permitted by the Constitution?

I. Don’t. Think. So!

Unless and until there’s evidence to the contrary, I’m certain the Speaker didn’t pay out of her pocket, or somehow authorize additional payment from the consolidated fund over and above A.G’s regular salary, for the advice she sought. So ought A.G. to have rendered the advice sought especially when Parliament has its own in-house Counsel who already advised on the issue? Is the delivery of such advice within his constitutional purpose?

I. Don’t. Think. So!

In that case in what capacity was A.G. acting? As a constitutional officer mandated to advise Government? As an unpaid qualified Attorney-at-law advising a non-client out of courtesy or sympathy? To whom does the gratuitous advice belong? Who paid for this “attorney-client privilege”? Speaker? Government (that didn’t ask for it)? Parliament? Or We the People?

In a Jamaican Court of Appeal decision Mario Anderson v General Legal Council (Judgment delivered November 1, 2023) the court, in deciding to refuse an application for the stay of a GLC sanction when the Applicant was claiming not to have been the client’s lawyer while practicing at the Kingston Legal Aid Clinic (KLAC), Nicole Simmons JA wrote (paragraph 29):

“It is notable that at the time when the applicant met with the complainant: (i) there was an existing retainer agreement between the KLAC and the complainant; (ii) the complainant had engaged the services of the KLAC to assist her with the filing of an application for letters of administration; (iii) the required deposit had been paid by her to enable the commencement of the matter and; (iv) the meeting took place at the offices of the KLAC.”

These are some of the pre-requisites required to establish an attorney-client relationship of which the payment of a retainer is, in my opinion, fundamental. There is no free lunch and there’s no free right to legal professional privilege. In the case of a constitutionally created legal office with ONE constitutional client how would such a relationship exist or be created with someone constitutionally separate from the designated client?

But then, when you closely examine the role of Speaker; the roles of Parliament and the roles of MPs (into which category the Speaker also fits) the matter becomes even more ludicrous. The Speaker is the presiding officer at Parliamentary sittings [Constitution Section 52(2)]. MPs are elected to represent their constituents in Parliament. They have no other legal function. They aren’t in Parliament on their own behalf or to do their own personal business. On what absurd authority would Parliament’s presiding officer seek a second opinion on a parliamentary issue from Government’s legal advisor (having already been advised by Parliament’s legal advisor) then proceed to treat the result as secret from MPs and constituents alike?

Call me John but no call me Tom

(John Tom)

Call me John but no call me Tom

because one man cannot name John and Tom

The matter becomes even more bizarre from A.G’s perspective when his constitutional role is scrutinized. Why would he accede to Speaker’s request at all? If I’m asked to give a private opinion to a private client (which I try not to do as, in real life, it just results in unnecessary legal expense) my first step is to check for conflicts. The problem with A.G’s and Speaker/Parliament’s roles is that they aren’t simply separate (as are the roles of Government and Parliament) but also conflicting which is why I’ve railed for decades against the former practice of appointing a MP as A.G.

Apart from A.G’s role as Government advisor including having to advise on the constitutionality of laws passed by Parliament especially if there’s a constitutional challenge (e.g. NIDS), there are expressly conflicting constitutional obligations. For example, Constitution Section 44:

(1) Any question whether -

a. any person has been validly elected or appointed as a member of either House; or

b. any member of either House has vacated his seat therein or is required, under the provisions of subsection (3) or subsection (4) of section 41 of this Constitution, to cease to exercise any of his functions as a member, shall be determined by the Supreme Court or, on appeal, by the Court of Appeal whose decision shall be final…...

(2) Proceedings for the determination of any question referred to in subsection (1)….may be instituted by any person (including the Attorney-General) and, where such proceedings are instituted by a person other than the Attorney-General, the Attorney-General if he is not a party thereto may intervene and (if he intervenes) may appear or be represented therein.”

A.G. ought not to be advising Parliament. He might one day sue a MP pursuant to section 44(2). He’s Government’s lawyer not MPs’ lawyer.

A who you a call John Tom?

Derrick Harriott is one of Jamaica’s most enduring entertainers whose seminal contribution to Jamaica’s music legacy as recording artiste; record producer; and distributor is incalculable. Known as “the man with two voices” (transitioned smoothly from tenor to falsetto), he, like many of his generation, was inspired by American popular music.

In a 2015 interview (unitedreggae.com) he said “People like Billy Eckstine was one of my favourite singers, Nat King Cole, Sarah Vaughan and Ella Fitzgerald, the Four Freshmen, I used to love that group. Then it changed a little bit after that. I started to listen to some real blues tunes. Louis Jordan was one of my favourites and then after that it was Louis Prima. We were inspired by what we would call the boogie songs. Boogie meant up tempo. You had to be a good dancer to dance to those songs – and we had the dancers!”

As a producer he nurtured dancing/singing groups like the Fabulous Flames (included Lloyd Lovindeer) and DJs like Scotty ( Riddle I Dis and many others) in addition to his own stellar career (with Jiving Juniors then solo) that included early hits like John Tom (1966) done to an old time Mento beat.

So who is calling the relationship between A.G. and Speaker an Attorney-client relationship? Not me. Who you a call the Attorney? Who you a call the client? What communication are you calling privileged? Free advice given by Government’s Lawyer to Parliament’s presiding officer? Whose privilege?

Call me John but no call me Tom….

Peace and Love.

Gordon Robinson is an attorney-at-law. Send feedback to columns@gleanerjm.com