The Bahamas is one of 32 jurisdictions examined in the new publication Attorney-Client Privilege in the Americas: Professional Secrecy of Lawyers published by Cambridge University Press. The book explores differences in the rules on attorney-client privilege within jurisdictions in North, Central and South America and the Caribbean. In the text, Higgs & Johnson partner Vann P. Gaitor leads a team of five attorneys, including two of the firm’s associates Lashay Thompson and Felix Beneby, in a chapter discussing the history, scope and limitations of the common law doctrine in The Bahamas.
“The privilege is the client’s, not the attorney’s or legal advisor’s,” says Mr. Gaitor. “It may, therefore, be waived by the client but not by the attorney.”
According to Mr. Gaitor, the doctrine of attorney-client privilege extends to communications between the client and his attorney and to communications made by the attorney as well as by the client, provided the communication is made for the purpose of giving or receiving legal advice, and provided further that the communication was not for the purpose of enabling or committing a crime or fraud.
This privilege which protects the accused and binds the attorney does not extend to any other profession and, in most Commonwealth countries, cannot be overridden by any supposed greater public interest. “In England, if a particular communication or document is subject to attorney-client privilege, the privilege cannot be set aside on the ground that some higher public interest requires that to be done,” says Mr. Gaitor. “In The Bahamas, we are not bound by decisions of the House of Lords but such decisions are highly persuasive and the Bahamian courts are not likely to rule differently on the issue of privilege as addressed in the case of Three Rivers District Council and Others v Governor and Company of the Bank of England [2005] 1 A.C. 610 HL, which affirmed that if a communication qualifies for attorney-client privilege, the privilege is absolute.
“Statutes here in The Bahamas and elsewhere in the Commonwealth of Nations may have made inroads on the doctrine of attorney-client privilege but, generally, the doctrine remains firmly ensconced in Bahamian law as a matter of public policy,” he says.
The intent of the text and related books on other geographic regions, according to editors James Silkenat and Dirk Van Gerven, is to establish “a common definition” than can be adopted by “all countries and international institutions” in an increasingly globalised world where rules on attorney-client privilege can differ significantly from country to country. Adapting the concept to meet the realities of people crossing borders with increasing frequency, while at the same time safeguarding the rights of citizens is, they contend “one of the major challenges facing the legal profession.”
The book was featured at the Caribbean Association of Law Librarians Conference hosted in Nassau, The Bahamas in July 2017. Also contributing to the Bahamas chapter were attorneys Andrea Moultrie and Camryn Cartwright.
