by Kevon K K Charles
Managing Partner, K C Legal Consultancy, Attorneys-at-Law
On a number of occasions, I have found myself in situations where the answer is not immediately clear.
A client seeks advice in relation to a transaction. The instruction is straightforward. The expectation is that the lawyer will act in furtherance of that objective. At the same time, there exists a separate layer of obligation that does not come from the client. It comes from the law. That is where the difficulty begins.
The lawyer’s position
The role of the attorney has always been grounded in certain core principles: loyalty to the client, confidentiality, independence of judgment, and the protection of legal professional privilege. These are not abstract ideas. They form the basis upon which clients are able to speak openly and seek advice without hesitation. Alongside those duties, there now exists an expanding framework of compliance obligations, particularly in relation to transactional work.
Where lawyers are involved in property transactions, corporate structuring, or the movement of funds, there is an expectation that certain questions are asked, and in some instances, answered.
These obligations do not arise from the client. They arise independently of the retainer. In practice, the issue is rarely obvious. A transaction may appear entirely proper. The client may be known. The structure may not be unfamiliar. Yet something about the arrangement requires a closer look. At that point, the lawyer is no longer simply progressing a transaction. There is a need to pause, to consider, and, in some cases, to question. That is not always a comfortable position.
A two-pronged reality
At a practical level, this tension engages 2 fundamental considerations. The first concerns the lawyer’s obligations under the Code of Conduct established pursuant to the Legal Profession Act. The attorney is required to act with integrity, to exercise independent judgment, and to avoid facilitating improper conduct. In that sense, the lawyer is not merely a conduit for instructions. There is a responsibility to assess whether a transaction can properly be supported, not simply whether it can be completed.
The second consideration is one that sits at the heart of the profession: client confidentiality.
Clients must be able to speak freely with their attorneys. That trust is essential. Without it, the ability of a lawyer to properly advise is undermined. The difficulty, however, is that modern regulatory expectations now exist alongside that principle. This does not remove the protection of legal professional privilege, but it does require a clearer understanding of its scope and its limits.
Can what I say to my lawyer remain confidential?
The answer remains yes, but not without context. The relationship continues to be grounded in trust, but it now operates within a framework where certain responsibilities extend beyond the client relationship itself.
In the Caribbean context, this balance can be particularly delicate. As explored in my previous articles, transactions often arise from longstanding relationships, informal arrangements, and structures that have developed over time. What is understood within a family or community does not always translate easily into what can be demonstrated when required. This does not make the transaction improper. It does, however, require a level of care that was not always necessary in the past.
So, the question remains. Can lawyers serve 2 masters? Or does the modern legal environment require us to accept that these obligations now exist side by side, and must be carefully navigated? Perhaps the best answer is that lawyers are not serving 2 masters, but balancing obligations that now sit side by side. Not always the easiest position to be in, but certainly one that is becoming more familiar.
This article forms part of a continuing examination of the evolving relationship between wealth, property, and compliance in the Caribbean.
