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1 lexcel law practice consultants Danger In The Laundry: Risks For All Under Money Laundering Laws (Part 1) This article was published in the Law Institute Journal (Victoria) in November 2008 and the Law Society Journal (NSW) in March 2009.* Legal practitioners who fail to guard against unwitting involvement in clients money laundering or financing of terrorism activities may face criminal or civil action, with the potential for very serious consequences. By Paddy Oliver A money laundering related conviction, whether criminal or regulatory... could potentially lead to a custodial sentence, professional misconduct charges, striking off, and loss of livelihood. Introduction The forthcoming application of Tranche Two Anti-Money Laundering & Counter Terrorism Financing Act 2006 (Cth) (AML Act) to the legal profession presents the profession with a unique blend of legislative obligations, legal ethics, and practice management issues. The draft legislation indicates that extra obligations will be placed on certain practitioners and legal practices (practitioners) regulated by the AML Act. However, the risks around money laundering and terrorist financing (ML/TF) will not be confined to regulated practitioners: there are likely to be ML/TF risks for all practitioners. This article will outline those risks. It must be noted that as Tranche Two has yet to be finalised there may be amendments to the AML Act. All opinions expressed are those of the author and are based on materials publicly available at time of writing. The risks to practitioners Money laundering is a significant problem globally and within Australia. In 2004 it is estimated that between $2.8 billion and $6.3 billion was laundered in Australia.1 At its most basic, money laundering allows the criminal source of the proceeds of crime to be concealed so that those proceeds appear to be derived from a legitimate source. Page 1 of 10

2 Practitioners are at risk from ML/TF in areas ranging from being used by launderers to potential criminal and regulatory sanctions. Why are practitioners a target for launderers? They handle client funds, carry on financial and other related transactions, including company formation and the buying and selling of real estate. There is the perception that if money comes from a practitioner, or a practitioner s trust account, or if a lawyer is involved in a transaction, it is clean, i.e. untainted by crime. In the overwhelming majority of cases this is correct; however, it is this very fact that is the attraction of laundering the proceeds of crime through legal practices. Launderers want clean money and, for example, a cheque drawn on a trust account is perceived to be clean. Launderers also engage in the buying and selling of real property, frequently using legal practitioners to facilitate the transaction. While there are no reported cases in this jurisdiction of practitioners having faced criminal prosecution for money laundering offences, there are reported cases overseas.2 Practitioners may be actively engaged in money laundering, passively engaged, or used unwittingly by money launderers. The risks may not be widespread, but they are real. The Law Society for England & Wales states that: Solicitors are key professionals in the business and financial world, facilitating vital transactions that underpin the economy. As such, they have a significant role to play in ensuring their services are not used to further a criminal purpose. As professionals, solicitors are obliged to act with integrity, uphold the law, and to not engage in criminal activity. 3 The risks faced by practitioners around ML/TF include: 1 Criminal proceedings4 for breaches of the substantive money laundering or terrorist financing offences under the Criminal Code Act 1995 (Cth) (Criminal Code), the AML Act, or the Charter of the United Nations Act (Cth) 1945;5 2 Civil proceedings for regulatory offences under the AML Act, with civil penalties or alternative enforcement action (administrative penalties); 3 Disciplinary action for potential misconduct arising from 1 or 2 above; 4 Civil action brought by a client; and 5 Reputational damage. Regulated v unregulated under the AML Act Page 2 of 10

3 Practitioners will need to understand the concept of being regulated or not regulated by the AML Act. If a practice provides a designated service to a client then the practice will be a reporting entity and subject to the obligations under the AML Act (s5). If a practice does not provide designated services it will not be a reporting entity and therefore not subject to AML Act obligations. Unfortunately, due to the activities-based definition of designated services it is entirely possible that one practice area in a practice will provide designated services while another will not. Until Tranche Two is settled it is impossible to outline precisely what will be a designated service and how a reporting entity will be defined.6 What appears certain is that some practices will be regulated and others not. Currently, all practices are subject to the Criminal Code. After Tranche Two is enacted practices providing designated services will also be subject to the AML Act obligations. Criminal Offences Risk All practitioners are at risk of criminal prosecution under the Criminal Code, and regulated practitioners will also be liable under the AML Act. Money laundering & terrorist financing Criminal Code Division 100 of the Criminal Code deals with terrorist financing,7 and Division 400 with money laundering. As there is potential for many more practitioners to fall foul of Division 400, whether wittingly or unwittingly, than under Division 100, this article will focus on Division 400 offences. (In relation to terrorist financing, it is axiomatic to state that a prosecution and conviction for this type of offence would be catastrophic for a practitioner due to both the likely jail sentence and the subsequent loss of livelihood.) Money laundering offences relate to dealing with money or other property which is the proceeds of crime or will become an instrument of crime (s400.1). The proceeds of crime can include not just the proceeds of drug trafficking or fraud etc. (although fraud is the major source of illegal funds), but also money or other property realised, directly or indirectly, from an indictable offence (s400.1). An instrument of crime is any money or property, the proceeds of crime or not, that is used in the commission of an indictable offence (s400.1). These concepts are very broad; the offences Page 3 of 10

4 summarised here are set out in more detail in the Code. Dealing with money or other property includes receiving, possessing, concealing or disposing of it (s400.2). Division 400 offences include intentionally, recklessly or negligently dealing with the proceeds of crime or an instrument of crime (ss ). The negligence offences may pose the greatest risk to practitioners. Although negligence in this context is the criminal standard, it may be low enough to potentially catch a practitioner. Section 5.5 states: A person is negligent with respect to a physical element of an offence if his or her conduct involves: (a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and (b) such a high risk that the physical element exists or will exist that the conduct merits criminal punishment for the offence." A practitioner dealing with client funds which they know or strongly suspect to be the proceeds of crime might thus fall foul of the negligence test. Penalties under ss range from 12 months imprisonment and/or 60 penalty units to 25 years imprisonment and/or 1500 penalty units, depending on the monetary value and the degree of culpability. Of more potential concern to practitioners is the s400.9 offence of receiving, possessing, concealing or disposing of money or other property where it is reasonable to suspect that the money or other property is the proceeds of a crime in relation to a commonwealth, state, territory or foreign indictable offence.8 The burden of proof is reversed and placed on the defendant (s400.9(5)). The penalty is two years imprisonment and/or 50 penalty units (s400.9(1)). In addition to the principal money laundering offences, there are accessorial offences, including: attempting (s11.1); aiding, abetting, counselling or procuring (s11.2); incitement (s11.4); and conspiracy (s11.5). These wide-ranging money laundering offences could present problems for practitioners. For example, what would be the criminal liability, if any, of a practice which allowed funds to pass through its trust account during a property transaction, where a practitioner had a reasonable suspicion that the funds were the proceeds of Page 4 of 10

5 crime? What if the practice had received, possessed, concealed or disposed of funds which are the proceeds of crime, or the instrument of crime? What would be the position if a client paid legal fees with cash and the practitioner suspected that the cash might be the proceeds of crime? Criminal offences AML Act Regulated practices face potential criminal sanction under the AML Act for a variety of offences. While the majority of penalties under the AML Act are civil and administrative in nature, there are several obligations that allow for criminal penalties. Part 12 of the AML Act outlines the general offences: producing false or misleading information (s136); producing false or misleading documents (s137); making or possessing a false document to be used in a customer identification procedure (s138); providing or receiving a designated service using a false customer name or customer anonymity (ss.139 and 140). The s139 providing offence appears to pose the greatest risk to practitioners, suggesting that there is an imperative to be diligent in undertaking client acceptance procedures. Potentially most problematic are the tipping off offences. Section 123(1) prohibits disclosure to a person, other than AUSTRAC,9 that a s41(2) suspicious matter report has been made. Section 123(2) prohibits disclosure to a person, other than AUSTRAC of: a s41(1) suspicion having been formed, or any information from which the person could reasonably be expected to infer that the suspicion has been formed (s123(2)(c )), or any information from which the person could reasonably be expected to infer that a s41(2) report had been made (s123(2)(d)). Penalties of two years imprisonment and/or a 120 penalty unit fine apply (s123(11)). Exceptions to the s123(2) tipping off offences include: dissuading a client from engaging in conduct that constitutes, or could constitute, the evasion of a taxation law or an offence against a commonwealth, state or territory law (s123(4)); disclosure to a legal practitioner to obtain legal advice (s123(5)); and exchange of information within designated business groups (s123(7)). Page 5 of 10

6 In addition, s242 states that the AML Act does not affect the law relating to legal professional privilege. Potential consequences of a criminal conviction A money laundering related conviction, whether criminal or regulatory (e.g. failing to report), could potentially lead to a custodial sentence, professional misconduct charges, striking off, and loss of livelihood. The UK judiciary have been strict in their view of solicitors AML duties.10 In R v McCartan,11 a failure to report case, Kerr LCJ of Northern Ireland stated (at 45): The success of these legislative provisions [the Proceeds of Crime Act 2002] depends crucially on scrupulous compliance with that statutory duty. This is of particular importance in the case of solicitors who, under their professional regulations and by dint of their status as officers of the court, have a further duty to ensure that such information is disclosed. Kerr LCJ outlined the approach that the courts should take when dealing with breaches by a professional person, stating (at 47) that a custodial sentence will almost invariably be required to make clear the importance of scrupulous adherence to the requirements of the legislation. Time will tell whether the Australian judiciary will take a similar approach. Regulatory Risk Civil and administrative penalties the AML Act Civil penalties on reporting entities will arise from breaches of civil penalty provisions of the AML Act including: failure to identify customers (s32); ongoing customer due diligence requirements (s36); failure to have or follow an AML/CTF Program (ss 81 and 82); failure to report suspicious matters (s41); and record keeping obligations (Part 10). Civil penalties can be up to $11 million for a body corporate (such as an incorporated legal practice) (s175(4)), and up to $2.2 million for a person (including a sole practitioner or partnership) (s175(5)). As an alternative to civil penalty proceedings, AUSTRAC also has the power to accept enforceable undertakings (EU) from reporting entities (s197). An EU would require the reporting entity to undertake remedial action to comply with the AML Act. Page 6 of 10

7 The EU regime is effective but can be costly in time and resources, depending on the terms of the particular EU. The acceptance of an EU would be publicised in the press and on the AUSTRAC website. Disciplinary proceedings As the majority of the criminal offences under both the Criminal Code and the AML Act are indictable offences they constitute serious offences under s1.2.1 the Legal Profession Act 2004 (Vic). Several consequences would flow from a conviction. First, a conviction would be a show cause event (s1.2.1), requiring the practitioner to explain why, despite the show cause event, they should be considered a fit and proper person to hold a local practising certificate (s2.4.26(2)). Second, the conviction would be capable of constituting unsatisfactory professional conduct or professional misconduct (s4.4.4 (c)(i)), leaving the practitioner open to a potential disciplinary complaint (s4.2.3). Whether a breach of a civil penalty provision of the AML Act would constitute professional misconduct or unsatisfactory professional conduct may depend on the seriousness of the breach. Certainly, a breach of the suspicious matter reporting obligation or failure to implement an AML/CTF program might be deemed sufficient to bring disciplinary proceedings. This type of breach may not constitute unsatisfactory professional conduct; however, it may constitute professional misconduct under the fit and proper requirement (s4.4.3). Civil action by client There is the potential for a civil action or complaint to be brought by a client against a practitioner. This could include: breach of privacy; inadequate professional service (delay); or breach of confidentiality. Section 6E(1A) of the Privacy Act 1988 (Cth) extends privacy obligations to reporting entities which are small businesses (with turnover under $3 millon) (s6d); therefore, it will apply to all regulated practices. A breach of the Privacy Act might lead to a complaint by a client, with the possibility of a determination by the Privacy Commissioner, potential damages, and resultant reputational issues for the practitioner. A complaint of inadequate professional service might arise if a practitioner needed Page 7 of 10

8 to investigate a potential suspicious matter, thereby adding extra time, or delay, to a client matter or transaction. The most contentious of the provisions under the AML Act is likely to be the reporting of suspicious matters on reasonable grounds under s41. There is a general duty on practitioners to keep the affairs of their clients confidential, with certain exceptions. The reporting obligation would override client confidentiality except where legal professional privilege (advice privilege and litigation privilege) applied (s242). If a suspicious matter report was made without reasonable grounds for the suspicion, it might constitute an actionable breach of duty of client confidentiality. Reputational issues It is often forgotten by practitioners that clients select their legal representatives for many reasons including trust, reputation and legal knowledge. If a practitioner was charged with, or convicted of, a Criminal Code ML/TF or AML Act criminal offence or civil penalty, it is likely that their reputation would suffer. There is little doubt that the press, whether local or national, would take an interest in a solicitor charged with money laundering, and the subtleties of whether the charge was criminal or regulatory might be overlooked. Any disciplinary hearings after a criminal or civil case could also have a negative reputational effect. As 18th century American statesman and writer Benjamin Franklin said, it takes many good deeds to build a good reputation, and only one bad one to lose it. Good reputation management would require practitioners to be alive to the risks around ML/TF and to take a proactive approach to managing their reputation in general and the specific ML/TF reputational risks. Conclusion The risks to the profession from ML/TF are real and varied. The likelihood of breaching the Criminal Code or the AML Act may be low to medium, but the consequences of any such breach could be very high. The best defence will be to keep the potential launderer (and attendant law enforcement) away, and keep AUSTRAC and other regulators satisfied if, and when, they visit. This can be achieved by an in-depth understanding of the obligations and ML/TF risks, and by implementing a robust AML/CTF program. There may also be benefits for practices Page 8 of 10

9 from better risk management linked to the AML Act. PADDY OLIVER is a lawyer, management consultant and Managing Director of Lexcel Law Practice Consultants, and has worked extensively in risk management, compliance and anti-money laundering for legal and financial services organisations in Australia and the UK. A later article will discuss management strategies to mitigate the risks of inadvertently breaching the anti money laundering regime. * Law Institute Journal (Victoria) (2008) 82(11) LIJ, p.62 & Law Society Journal (NSW) (2009) 47(3) LSJ, p J Walker, The Extent of Money Laundering in and through Australia in 2004, September 2007, Criminology Research Council. 2. For example: United States v Gwiazdinski 141 F.3d 784 (7th Cir. 1998); United States v Goulding & Ushijima 26 F.3d 656 (7th Cir. 1994); The Attorney General Of Zambia For And On Behalf Of The Republic Of Zambia V Meer Care & Desai (a firm) and others [2008] EWCA Civ 875; and the UK cases cited below at note The Law Society, Anti-Money Laundering Practice Note, February Only the Criminal Code and the AML Act will be discussed here, as they pose the greater risks to practitioners in general. 5. Part 4 relates to UN Security Council decisions on terrorism and dealing with assets: offence of dealing with freezable assets belonging to a proscribed person or entity (s20); offence of making available an asset to a proscribed person or entity (s21). Part 5 relates to UN sanctions, including the s28 offence of contravening a UN sanctions enforcement law. 6. The proposed designated services are currently under consultation; draft can be obtained from freforms. 7. Terrorist financing encompasses: getting funds to, from, or for a terrorist organisation; providing support to a terrorist organisation; financing terrorism; financing a terrorist. Sentences range from 15 years imprisonment to life imprisonment (Div 100). 8. Section 400.9(2) outlines certain conduct which is taken to fulfil the reasonable suspicion test. Page 9 of 10

10 9. Australian Transaction Reports and Analysis Centre fulfills the role of Australia's anti-money laundering and counter-terrorism financing regulator and specialist financial intelligence unit. 10. R v Mc Cartan [2004] NICA 43; R v Duff [2002] EWCA Crim 2117; R v Griffiths [2006] EWCA Crim Note 10 above. Page 10 of 10

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