Turning lawyers into government spies

Paul Craig Roberts

When will the first lawyer be arrested, indicted and sent to prison for failing to help the government convict his client? You can bet it will be soon. Once the Securities and Exchange Commission, Internal Revenue Service and U.S. Department of Justice (sic) complete their assault on the attorney-client privilege, they will rush to make an example of a lawyer, lest any fail to understand that their new role in life is to serve as government informants on their clients.

Just as government bureaucrats used the terrorist attacks of Sept. 11 to assault the Bill of Rights and our constitutional protections, they are now using "accounting scandals" and "tax evasion" to assault the attorney-client privilege, a key component of the Anglo-American legal system that enables a defendant, whether guilty or innocent, to mount a defense against the overwhelming power of the state.

The assault on the attorney-client privilege began with Jeremy Bentham, the first modern tyrant, who saw his role in life as the antagonist of the great English jurist William Blackstone. Bentham argued that the legal principles that protect the innocent, enshrined in English law as "the Rights of Englishmen," were no longer needed and served only to protect criminals.

Bentham thought that Blackstone's principles were fine in their day, as they served to protect the people from the tyranny of autocratic kings. But now that government was controlled by the people's representatives in Parliament, how could the people tyrannize themselves?

Crime control would be easier, Bentham argued, if police, prosecutors and judges were free to torture suspects into confessions, force their attorneys to rat on them and pre-emptively arrest people who might commit crimes in the future. There was no power that Bentham did not think government could be trusted with in order to better serve the public good.

In our days, the Benthamite attack on the attorney-client privilege was revived by Assistant Attorney General Stuart M. Gerson, who declared the 400-member prominent law firm of Kaye, Scholer "an abettor of crime" for not ratting on its client, Lincoln S&L owner Charles Keating. The government froze the assets of the law firm and the personal assets of the 400 partners, an action that coerced the firm and its partners to hand over a $41 million ransom payment to the government.

Fierce opposition from bar associations and legal authorities could not prevent the government from succeeding in this act of robber barony, despite the fact that Keating had not gone to trial or been convicted of any offense. The law firm was robbed for abetting a crime that had not been tried or proven.

Many law-and-order conservatives fall in with Benthamite views, because they believe with Bentham that the function of the justice system is to convict defendants. Many have expressed their distaste to me of "lawyers who defend criminals." They overlook that it is the jury that determines whether the defendant is a criminal. If we assume that police and prosecutors are always right, there is no point of a trial.

Police and prosecutors are not always right. They make tens of thousands of mistakes. Some experts estimate that there are 200,000 innocent Americans in prisons. There is a constant flow of convicted "murderers" and "rapists" being released on the basis of DNA evidence that proves their innocence. It would be a sobering event for law-and-order conservatives to become caught up in the legal system.

Alexis de Tocqueville believed that American lawyers would not tolerate attacks on the attorney-client relationship, but bar association president Alfred P. Carlton Jr. has already collapsed, lining up with the government against his profession and the presumption of innocence.

The sacking of the attorney-client privilege can only produce a nightmare. Many white-collar crimes and securities regulations are so vague and arcane that no one knows for sure what they mean. Their meanings are usually argued out in settlements or trials. What will happen now is that any attorney who fails to guess in advance the regulator's interpretation of the regulation can be charged with helping his client commit fraud.

The same holds for "questionable" tax shelters. It is a matter of interpretation. Any attorney who fails to anticipate the IRS bureaucrat's interpretation becomes an abettor of fraud.

During the administration of George Bush I, the Benthamite attack on the attorney-client privilege was revived in force. Now during the administration of Bush II, lawyers are being stripped of their protective role and turned into instruments of government prosecution.

These are the measures of a police state. Look around, fellow Americans, and recognize the Benthamite face that the unbridled pursuit of criminals has placed on your "justice system."