The leak of the so-called “Panama Papers”—the roughly 11 million documents from the Panama-based international law firm Mossack Fonseca, provided to the International Consortium of Investigative Journalists (ICIJ) by an anonymous whistleblower—has generated an enormous amount of coverage and commentary (including on this blog: see here, here, here, and here). The identity of the person who leaked the documents is still unknown, but (as many readers are already no doubt aware), this individual posted a “manifesto” last month under the name “John Doe,” explaining his motives in leaking the documents and advocating the sorts of reforms he or she believes are necessary to combat the evils that the Panama Papers reveal and represent. I’m not sure how many of our readers have already read the manifesto, but if you haven’t, I highly recommend that you do. It’s a fascinating document, obviously written by somebody who is both passionate and very well-informed. I’m not sure whether I agree with everything in it—the spirit of the manifesto is radical, even revolutionary, while by nature I tend to be more cautious and incremental—but I think that everyone ought to read the manifesto and take it seriously.
In terms of specific policy reforms, much of what the manifesto proposes has been widely discussed elsewhere: a call public corporate registers (including calls for the UK to extend its domestic initiatives in this area to its overseas territories and dependencies, and for the US to impose transparency and disclosure requirements on individual states); demand for reform of America’s “broken campaign finance system”; and the criticism of the “revolving door” between regulatory agencies and the financial institutions they regulate. (On this last point, by the way, I think John Doe’s analysis is both overly simplistic and overly nasty. He singles out Jennifer Shasky Calvery, the former director of the US Treasury’s Financial Crimes Enforcement Network (FinCEN), calls her “spineless” and castigates her for going to work for HSBC, “one of the most notorious banks on the planet.” I think the general criticism of the revolving door is too simple for reasons I have laid out previously, and it’s unfair in this context in particular because Ms. Calvery in fact had a reputation for aggressive enforcement. Maybe John Doe knows something about Ms. Calvery’s tenure at FinCEN that I don’t, but I found that this petty name-calling, not backed up by any evidence beyond vague insinuations and guilt-by-association, to be both off-putting and out of character with the rest of the manifesto.)
But in addition to these fairly familiar themes, John Doe’s manifesto lays out two radical policy proposals that, so far as I can tell, have gotten very little attention in the discussions of the Panama Papers, or even in discussions of the manifesto specifically. Both are worth taking seriously, though both make me uncomfortable:
First, the manifesto calls for stronger whistleblower protections. That by itself is not all that new, but the nature of the protection demanded goes far beyond what has been discussed in the mainstream policy debate thus far. John Doe proposes that “[l]egitimate whistleblowers who expose unquestionable wrongdoing, whether insiders or outsiders, deserve immunity from government retribution, full stop.” In other words, even if a whistleblower has unquestionably violated some other law in revealing the information—say, a confidentiality agreement, government secrecy laws, professional ethics rules, or what have you—that whistleblower should get absolute immunity as long as the whistleblower is “legitimate” and has “expose[d] unquestionable wrongdoing.” John Doe’s examples of the sorts of whistleblowers who deserve such protection (Edward Snowden, Bradley Birkenfeld, Antoine Deltour, and of course John Doe himself) make it absolutely clear that what John Doe is calling for is not simply stronger protection from retaliation against lawful whistleblowing, but for immunity from prosecution for unlawful whistleblowing. There are all sorts of contexts where a person might come into possession of sensitive information, perhaps information that indicates (or at least suggests) corruption or other wrongdoing, where the party that is privy to the information is under a legal (or ethical or professional) obligation not to disclose it (even though the individual may also be under a legal obligation not to assist in furthering the illegality). John Doe’s position, if I understand it correctly, is that if such an individual violates her obligation of confidentiality and discloses the information to the public, the government should be barred from prosecuting her (at least so long as the wrongdoing is “unquestionable” and the whistleblower is “legitimate”).
I see the appeal of that position, given how much we depend on insider whistleblowers to learn the truth about shady, illegal doings of the rich and powerful. (Though I don’t know the facts well enough to have a firm opinion, I’m deeply troubled by the decision to prosecute Antoine Deltour for his role in the LuxLeaks revelations. And I think John Doe himself has done an important public service in providing the Panama Papers. On the other hand, I tend to think that Edward Snowden should probably be prosecuted under the Espionage Act, which probably puts me in a small minority, at least among people who otherwise share my political leanings.) At the same time, if we think a bit beyond a handful of highly salient cases, doesn’t it start to seem a bit problematic to say that anyone who exposes “unquestionable wrongdoing” is immune from prosecution? Can anyone working for intelligence agencies who finds out about crimes committed by, say, top officials in other countries simply announce that information to the general public? What about someone who in a law enforcement agency who finds out about wrongdoing in the course of an ongoing investigation, and chooses to announce this to the media, even though it might compromise the investigation or undermine settlement negotiations? And, by the way, who gets to decide what counts as “wrongdoing,” and which whistleblowers are “legitimate”? Would that determination fall to a court? Before or after the fact? Oh, and one other question here: the John Doe manifesto references immunity from “government retribution”—what about professional disbarment? Lawyers, at least those who represent possible criminal defendants, often find themselves in possession of evidence of “unquestionable wrongdoing,” which they are under a professional obligation not to disclose (though they are also under a professional obligation not to facilitate the commission of a crime). Does John Doe mean to suggest an end to the lawyer’s obligation of confidentiality, at least when the client has engaged in “obvious wrongdoing”? (By the way, I strongly suspect that this is very much John Doe’s own situation if, as seems likely, he was a lawyer at Mossack Fonseca.) Does the whistleblower immunity only kick in when the wrongdoing is not only “obvious” but “really big”—or perhaps when the disclosure serves some broader public purpose beyond exposing the particular wrongdoers? Again, who makes that call?
The subject of the professional regulation of lawyers brings me to the second proposal in John Doe’s manifesto that I think ought to get much more attention than it has. Indeed, the following passage struck me as perhaps the most interesting, provocative, and potentially significant in the whole manifesto (though perhaps that’s just because I teach at a law school:
But most of all, the legal profession has failed. Democratic governance depends upon responsible individuals throughout the entire system who understand and uphold the law, not who understand and exploit it. On average, lawyers have become so deeply corrupt that it is imperative for major changes in the profession to take place, far beyond the meek proposals already on the table. To start, the term “legal ethics,” upon which codes of conduct and licensure are nominally based, has become an oxymoron. Mossack Fonseca did not work in a vacuum—despite repeated fines and documented regulatory violations, it found allies and clients at major law firms in virtually every nation. If the industry’s shattered economics were not already evidence enough, there is now no denying that lawyers can no longer be permitted to regulate one another. It simply doesn’t work. Those able to pay the most can always find a lawyer to serve their ends, whether that lawyer is at Mossack Fonseca or another firm of which we remain unaware. What about the rest of society? (emphasis added).
In other words, John Doe is calling for an end to the traditional practice of professional self-regulation by lawyers (through bar associations), and presumably calling to replace it with some system of government regulation. (At least that’s how I interpret it; I acknowledge that the proposed alternative to professional self-regulation is not spelled out.) He also seems to be calling for a substantial change in the substance of professional conduct rules for lawyers, not merely a change in the entities responsible for regulation, thought he content is not entirely clear. Here, I’m not sure what I think, but I’d be interested in the perspectives of other members of the anticorruption community. There’s certainly a lot to be concerned about where lawyers are concerned – consider not only Mossack Fonseca’s conduct, but the recent Global Witness report, which Rick discussed last month. And I have little love for bar associations, at least here in the U.S., where they seem to be mainly a kind of self-protective guild more than anything else. But the idea of government regulation of lawyers makes me a bit nervous, partly because I’m not sure that a government regulatory body would do a better job, partly because in some countries, maintaining the independent professional self-identity of lawyers may be an important safeguard of rule-of-law ideals and a counterweight to an overly intrusive government. But I’ll be honest, I haven’t given this issue nearly enough thought, and I’d be curious what others think.
At the very least, the Panama Papers whistleblower has put these issues squarely in front of us, and he deserves our thanks for this, in addition to the leak itself. Looking forward to further discussions, both on- and off-line.