Barristers and lawyers face a "chilling threat" to client confidentiality as the Hong Kong legal profession awaits judgment on one of the most far-reaching judicial reviews into the cardinal oath.
The right of legal professional privilege was recently flung into the spotlight with the arrest of a Hong Kong barrister and two solicitors over allegations they refused to disclose the 'suspicious' financial transactions of a client.
Justice Michael Hartmann, who heard the judicial review in the Court of First Instance over recent weeks, has retired to consider the case with his judgment pending.
During the judicial review, Pang, the Bar Council and the Law Society, asked the court to clarify whether the issue of client confidentiality had been made redundant by Section 25 (a) of the Organised and Serious Crimes Ordinance (OSCO).
ALB's Chambers of the Year winner John Scott, of Des Voeux Chambers, senior counsel representing the Law Society, says the arrest and the subsequent implications is of great concern to the legal community.
"It has come as a bit of a shock to some people that this law exists at all," he says. "This is mainly because of the very strict duties of confidentiality and privacy that lawyers are used to operating under.
"It has the chilling effect of making every solicitor and barrister an agent of the state. It makes them choose between duty to the client and duty to the state."
He adds: "The other problem is it is very subjective, because what might be suspicious to one person may not be suspicious to another.
"We are all hoping the findings by the judge can shed some light on the matter."
As ALB went to press, Justice Hartmann had not yet handed down his findings, but they are expected before the Christmas break.
Police arrested barrister Robert Pang and two solicitors on March 14, claiming they had breached OSCO when they helped launder money for their clients, a husband and wife accused of stealing US$75m (HK$560m) from the Bank of China.
Pang, who has been practicing since 1988, is seeking a declaration that his arrest was arbitrary and unlawful.
Ip Shing Hing, president of the Hong Kong Law Society, says client confidentiality is one of the cardinal principles of the profession.
"In Hong Kong right now, we have certain pieces of legislation that cut into this consideration," he says. "One is money laundering, another is proceeds from organized crime, including drug trafficking and also more recently anti-terrorism."
He adds: "When you have a duty or are obliged to make a report to authorities about 'suspicious activity', it is very worrying. Somehow we have to draw line. We need some very clear guidelines on when to make this call. And this time is a good time for the court to make some observations. Of course a decision from the court will also be much more authoritative."