GUIDANCE NOTES FOR SOLICITORS ON ANTI-MONEY LAUNDERING LEGISLATION

Transcription

1 GUIDANCE NOTES FOR SOLICITORS ON ANTI-MONEY LAUNDERING LEGISLATION OBLIGATIONS ARISING UNDER EU DIRECTIVE 2001/97/EC, THE CRIMINAL JUSTICE ACT, 1994 AND THE CRIMINAL JUSTICE ACT, 1994 (SECTION 32) REGULATIONS, 2003 ON PREVENTION OF THE USE OF THE FINANCIAL SYSTEM FOR THE PURPOSE OF MONEY LAUNDERING

2 GUIDANCE NOTES FOR SOLICITORS ON ANTI-MONEY LAUNDERING LEGISLATION INDEX Subject Page Section 1 General Introduction 1-3 Section 2 A suspicious transaction 4 Section 3 Identification procedures 5-11 Section 4 Record-keeping procedures Section 5 Procedures for staff training and awareness Section 6 Reporting Procedures/Obligations Appendix 1 Common indicators of potentially suspicious transactions Appendix 2 Identity/Address Verification Form Appendix 3 Countries prescribed as having similar anti-money laundering obligations 24 Appendix 4 Internal Money-laundering Report Form 25 Appendix 5 Standard Reporting Form to Authorities 26 Appendix 6 List of designated bodies Appendix 7 Part II, Criminal Evidence Act, Appendix 8 Letter of 3 September 2003 from Minister for Justice, Equality and Law Reform 35

3 Section 1 General introduction to the law governing money-laundering and its implications for the solicitors profession Background and legislative framework 1.1 The term money-laundering means the process whereby the identity of dirty money representing the proceeds of criminal conduct is changed ( washed ) through apparently-legitimate transactions and processes, so that the money appears to originate from a legitimate source. In recent years, concerted efforts have been made on a world-wide basis to restrict the circumstances in which illegal proceeds can be laundered through legitimate business. This has primarily taken the form of legislation, creating specific new criminal offences and placing obligations on service-providers to identify customer/clients, to maintain records and report suspicious transactions. In Ireland, the relevant legislation is the Criminal Justice Act, 1994 (as amended). 1.2 Since 1994, all financial institutions in the State have been subject to the provisions of the 1994 Act, in terms of its requirements to (a) identify clients, (b) maintain records, and (c) report suspicious transactions. By virtue of the Second EU Directive on Money-Laundering and the Criminal Justice Act (Section 32) Regulations 2003, all solicitors are now also bound by the 1994 Act obligations, subject to certain exemptions. 1.3 The relevant sections of the Criminal Justice Act, 1994 (as amended), are - section 31, which sets out the offence of money-laundering, section 32, which imposes an obligation to identify clients and maintain records, section 57, which imposes an obligation to report suspicious transactions, and section 58, which creates the offence of tipping off. 1.4 All solicitors should familiarise themselves with the content of each of these sections. Solicitors should appreciate that the 1994 Act brings into effect a completely new approach to solicitor/client relationships. Every solicitor should be acutely aware of the criminal offences created by the 1994 Act and how he/she might unwittingly become involved. Principal offences 1.5 The main offence under the Act is money-laundering per se (section 31). A person is guilty of money-laundering if he converts, transfers, handles or removes property that he knows, believes or is reckless as to whether it represents the proceeds of criminal conduct. The term criminal conduct means conduct which constitutes an indictable offence in Ireland. It also means conduct occurring outside the State which would constitute an offence within the State and in the country where it occurs. This includes drug trafficking offences, organised crime, theft and fraud, forgery, blackmail, extortion and tax evasion. In relation to clients from abroad, practitioners should note that the offences covered by the provisions are not confined to Ireland. 1.6 The Society is confident that no solicitor would engage in money-laundering. However, solicitors should particularly note that, under section 31(7)(iii), references to converting, transferring, handling or removing property include references to the provision of any advice or assistance in relation to converting, transferring, handling or removing it. In terms of the level of knowledge required, the Act (at section 31(7)(iv)) provides that references to believing that property is or represents the 1

4 proceeds of criminal conduct includes references to thinking that the property was probably, or probably represented, such proceeds. Solicitors should guard most carefully against falling foul of this provision unwittingly. It should be noted that tax offences are not in a special category: the proceeds of a tax offence, like the proceeds of the other examples of criminal conduct referred to above, may be the subject of a money-laundering offence under the Act. 1.7 Failure to establish the identity of clients, to retain records for the requisite period of time or to establish procedures and provide training for employees to enable them to identify suspicious transactions constitute offences under section 32(12). 1.8 Failure to report a suspicious transaction to the Garda Siochana and the Revenue Commissioners is an offence under section 57(5). 1.9 Section 58(2) makes it an offence to make any disclosure which is likely to prejudice any investigation arising from a report made under section 57(1). This is known as the tipping off provision. Solicitors should ensure not to make any such disclosure, particularly to his or her client. However, the Minister for Justice, Equality and Law Reform, Michael McDowell SC, on the basis of advice from the Attorney General, Rory Brady SC, has advised that nothing in the Act (including section 58) or the Regulations would prohibit a solicitor from informing his or her client that he or she was ceasing to act for the client or, indeed, that he or she was ceasing to act for a client because he or she was unhappy with any transaction in which the client was involved (see Appendix 8). What do the new Regulations mean for solicitors? 1.10 As and from 15 September, 2003, solicitors will be required to- Take measures to identify new clients (not existing clients) and maintain records of their identity (see Section 3 of these Guidance Notes); Maintain records of all relevant transactions (by both new and existing clients) and copies of all documents for at least five years following the transaction (see Section 4); Introduce internal procedures for staff training and awareness (see Section 5); Introduce internal reporting procedures (see Section 6); Report suspicious transactions to the Garda Siochana and the Revenue Commissioners (see Section 6). Exemptions for solicitors 1.11 A number of significant exemptions from the 1994 Act regime were secured for solicitors in the 2001 EU Directive on Money-Laundering. These exemptions are set out below Firstly, the obligations to retain records or report suspicious transactions only arise where a solicitor participates in certain types of legal work identified in Article 2a.5 of the Directive, i.e. either: (a) by assisting in the planning or execution of transactions for a client concerning the- (i) buying and selling of real property or business entities; (ii) managing of client money, securities or other assets; (iii) opening or management of bank, savings or securities accounts; (iv) organisation of contributions necessary for the creation, operation or management of companies; 2

5 (v) creation, operation or management of trusts, companies or similar structures; or (b) by acting on behalf of and for a client in any financial or real estate transaction Secondly, solicitors are exempt from the obligation to make a suspicious transaction report with regard to information they receive from or obtain in relation to their client: (a) in the course of ascertaining the legal position for that client, or (b) when performing their task of defending or representing that client in or concerning judicial proceedings (whether such information is received or obtained before, during or after such proceedings), or (c) when advising that client in relation to instituting, avoiding or defending judicial proceedings (whether such information is received or obtained before, during or after such proceedings.) 1.14 Thirdly, where a solicitor makes a suspicious transaction report, he is permitted to immediately cease to act for that client. This action will not be regarded as an offence under section 58 of the 1994 Act (see letter from Minister for Justice, Equality and Law Reform at Appendix 8.) 1.15 However, practitioners should note that the identification obligations arise in relation to all new clients, regardless of the transaction being performed and the recordkeeping obligations arise for both new and existing clients, but only in relation to transactions within the specified categories of legal services set out at paragraph 1.12 above The obligations may also arise in circumstances where a solicitor is giving independent advice, either to (a) a party to, or (b) a person affected by a relevant transaction, even though the solicitor may not be conducting the transaction him/herself. Scope of Guidance 1.17 The purpose of these Guidance Notes is to provide recommendations as to good practice. They do not constitute a legal interpretation of the Act. Because the obligation to make a suspicious transaction report is based on a subjective test in each particular set of circumstances (i.e. is the transaction suspicious?), the assessment as to whether the reporting obligation arises must be made by each solicitor, in conjunction with the firm s Money-laundering Reporting Officer, if one is appointed. However, by way of assistance to practitioners, the Society has included a nonexhaustive list of indicators of potentially suspicious circumstances at Appendix 1 of these notes Under section 57(6) of the Act, in determining whether a solicitor has complied with his obligations, a court may take account of any supervisory or regulatory guidance issued by a body that regulates, or is representative of, any trade, profession, business or employment carried on by that person. Accordingly, compliance with these Guidance Notes is strongly recommended for all solicitors and their employees As the profession s experience of compliance with the requirements of the legislation grows, these Guidance Notes will evolve and be revised over time to take account of issues and difficulties encountered by practitioners in their day-to-day practice Certain aspects of these Guidance Notes reflect advices published by the Central Bank for financial institutions and the Society acknowledges the valuable assistance provided by those Notes in its preparation of its Guidance for solicitors. 3

6 Section 2 What constitutes a suspicious transaction 2.1 Suspicion is personal and subjective and falls far short of proof based upon firm evidence. Suspicion has been defined by the English Courts as being beyond mere speculation and based on some foundation, i.e. a degree of satisfaction not necessarily amounting to belief but at least extending beyond speculation as to whether an event has occurred or not and although the creation of suspicion requires a lesser factual basis than the creation of a belief, it must nonetheless be built upon some foundation. 2.2 In order to assist practitioners, Appendix 1 of these Guidance Notes contains a nonexhaustive list of indicators of potentially suspicious circumstances. 4

7 Section 3 Identification procedures Existing clients 3.1 A solicitor is not expected to retrospectively establish the identity of persons for whom he is already providing services on a continuing basis on or before 15 September Nevertheless, solicitors should be aware of the identity of all those persons to whom they are providing a service (whether existing or new), if they are to effectively carry out their anti-money laundering obligations. For instance, solicitors should be satisfied that transactions for all clients remain reasonable and are not significantly unusual in the context of their relationship with that person, regardless of when the relationship commenced. 3.2 Regardless of the amount of the transaction, a solicitor is required to establish the identity of a client who was an existing client on or before 15 September 2003 where there is a suspicion that the service being provided is connected with the commission of a money laundering offence. 3.3 If the client is a different company in a client group for whom services had not been provided before 15 September, then the identification rules for new clients apply as it is a different legal person. New clients 3.4 As and from 15 September 2003, a solicitor is required to take reasonable measures to identify all new clients (section 32(3)) for whom he proposes to provide legal services either on a continuing basis, or in respect of a transaction/series of transactions amounting to at least 13, A solicitor must also retain copies of all materials used to identify the person concerned (section 32(9)). At the outset of the retainer, a solicitor should identify all relevant parties and clarify from whom instructions are being received. 3.6 The name and address of the client should be obtained and should be independently verified. In the case of joint clients, identification evidence should be obtained and verified in relation to all of them. If a solicitor knows or believes that he is dealing with a person who is acting for a third party, the solicitor must take reasonable measures to establish the identity of the third party (section 32(5)). 3.7 Different identification criteria will apply for different types of client and examples of suitable documentary evidence are set out at paragraphs 3.14 to 3.48 below. A sample Identity/Address Verification form is attached at Appendix 2 and should be maintained on a central file. Solicitors may also wish to maintain a further copy on each individual client file. To assist practitioners, a Verification of Identity Flowchart, charting the steps to be taken in respect of new clients, is also circulated with these Notes. Exemptions from requirement to establish identity 3.8 There is no obligation to establish identity in the following circumstances:- Where the client is an existing client at 15 September 2003 (see paragraph 3.1 above) or the client is personally known to the solicitor; Where the client is also a designated body under the Act, Regulations, or EU legislation (see Appendix 6 for list of designated bodies); 5

8 Where there is a one-off transaction or series of linked transactions and the aggregate amount involved is less than 13,000. What form of identification is required? 3.9 The general principle is that you should establish satisfactorily that you are dealing with a real person or organisation (natural, corporate or legal) and obtain identification evidence sufficient to establish that the client is that person or organisation You should obtain satisfactory evidence that a person of that name lives at the address given, that the client is that person or if the client is a company, that the company has identifiable owners and that its representatives can be located at the address provided You are required to keep copies of the supporting evidence for 5 years after the relationship has ended with the client Obviously, different criteria will apply for individuals, companies, Irish and non-irish residents and for persons with whom it is not possible to have face-to-face identification Examples of suitable documentary evidence for verification in different instances is set out below. Resident Private Individuals (face-to-face) 3.14 As far as possible, there should be face-to-face contact with the prospective client. You should obtain evidence of their name and permanent Irish address. In addition, date of birth should normally be sought and recorded The name should be verified by reference to a document obtained from a reputable source which bears a photograph and a signature. Where possible, a current valid passport or driving licence should be requested (and the identification page copied) The current permanent address should also be verified. This may be done most easily by requiring sight of (and taking a copy of) current originals of any of the following:- Utility bill Bank or building society statement A recent original mortgage statement Tax Notices from the Revenue Social welfare documents House/motor insurance certificates 3.17 Where a prospective client does not possess evidence of name and address as outlined above, the solicitor may adopt alternative identification procedures If a client has neither a passport nor a driving licence to verify the name, the solicitor could accept- Documentation/card issued by a Government Department showing the name of the person Letter/statement from a person in a position of responsibility (e.g. another solicitor, accountant, doctor, minister of religion, teacher, social worker) who can confirm the person s identity. If possible, this person should accompany the client and produce evidence of their own identity 6

9 3.19 Where none of the items listed at paragraph 3.16 above are available to verify the address, the solicitor could accept- Letter/statement from a licensed employment agency that the person has recently arrived in Ireland and is commencing employment and is not in a position to produce a utility bill Letter/statement from an employer that the person has recently arrived in Ireland and has commenced employment and is not in a position to produce a utility bill Documentation/card issued by a Government Department showing the address of the person Letter/statement from a person in a position of responsibility (e.g. a solicitor, accountant, doctor, minister of religion, teacher, social worker) who can confirm the person s address. If possible, this person should accompany the client and produce evidence of their own identity Non-Resident Private Individuals (Face-to-Face) 3.20 The identity of prospective clients who are not normally resident in the State but who wish to use the services of an Irish solicitor should be established using procedures which are, as far as possible, similar to those used to establish the identity of persons resident here (see paragraphs 3.14 to 3.19 above) For those prospective non-resident clients where face-to-face contact is made, the verification of an address may present difficulties. However passports, national identity cards or other documents containing a photograph and signature issued by a reliable source should normally be available and be copied and the relevant reference numbers should be recorded. Business conducted by Post, Telephone, or Electronically (Non-Face to Face) 3.22 Any mechanism (e.g. post, telephone, or electronic) that avoids face-to-face contact between a solicitor and a prospective new client inevitably poses challenges for client identification. Legal services conducted on the Internet adds a new dimension to risks and opens up new mechanisms for fraud and money laundering. The identification measures adopted and the information received should achieve, as far as possible, the underlying objective, which is that the solicitor should take reasonable measures to establish and verify the identity and address of the person to whom he proposes to provide the service. Resident Private Individuals (Non Face-to-Face) 3.23 The name should be verified by means of a certified copy of a passport or driver s licence (certification should be by a suitable person, including a solicitor, notary public, Garda officer, Embassy /Consular staff or another designated body in Ireland) 3.24 The current permanent address should also be verified. This may be done most easily by requiring sight of (and taking a copy of) current originals of any of the following:- Utility bill Bank or building society statement A recent original mortgage statement Tax Notices from the Revenue Social welfare documents House/motor insurance certificates 3.25 Where a prospective client does not possess evidence of name and address as outlined above, the solicitor may adopt alternative identification procedures. 7

10 3.26 If it is not possible to obtain a certified copy of a passport or a driving licence to verify the name, the solicitor could verify identity by means of two of the following- Copy of passport or driving licence (This copy should be reviewed to ensure that it is in date, that there is no apparent variation between the signature on the copy and the signature obtained on any other document received from the customer and that the format of the copy document is consistent with the official format of that document for the country in question) Verification that the named client is registered as living at the home address provided (i.e. one of the methods used below to verify address) Telephone contact with the client at an independently verified home or business telephone number Confirmation from the client s employer by telephone to the listed business telephone number Where none of the items listed at paragraph 3.24 above are available to verify the address, the solicitor could accept- Letter/statement from a licensed employment agency that the person has recently arrived in Ireland and is commencing employment and is not in a position to produce a utility bill Letter/statement from an employer that the person has recently arrived in Ireland and has commenced employment and is not in a position to produce a utility bill Documentation/card issued by a Government Department showing the address of the person Letter/statement from a person in a position of responsibility (e.g. a solicitor, accountant, doctor, minister of religion, teacher, social worker) who can confirm the person s address. If possible, this person should attend at the solicitor s office and produce evidence of their own identity Non-Resident Private Individuals (Non Face-to-Face) 3.28 For prospective non-resident clients who wish to obtain legal services without faceto-face contact it is important that, as far as possible, the verification procedures outlined for resident private individuals in paragraphs 3.23 to 3.27 above should be carried out and the same information obtained in respect of personal identity and address verification Particular care should be taken when relying on identification evidence provided by individuals or organisations from countries that are not subject to similar moneylaundering obligations (see Appendix 3 for list of those countries that are subject to similar money-laundering obligations) to ensure that the client s true identity and current permanent address can be confirmed. Copies of relevant documents should be sought and retained. Clubs and Societies 3.30 In the case of clubs and societies, the solicitor should satisfy himself as to the legitimate purpose of the organisation. In addition, the identities of at least two elected officials should be established in accordance with the guidelines set out in paragraphs 3.14 to 3.19 above. Partnerships 3.31 In the case of a partnership, the identities of at least two partners and of those authorised to issue instructions on behalf of the partnership should be verified in accordance with paragraphs 3.14 to

11 Agents/Intermediaries 3.32 Where the agent/intermediary is itself a designated body (e.g. a solicitor, accountant, auctioneer, estate agent, financial or credit institution), or a body corresponding to a designated body in a member state of the European Union or in one of the other countries listed in Appendix 3, there is no need to establish the identity of the agent/intermediary. However, the solicitor should ensure that the designated body does actually exist and that it is regulated for money laundering purposes. A list of all designated bodies is set out at Appendix Where an agent/intermediary which is a designated body proposes to undertake a transaction for a third party, there is no need for the solicitor to establish the identity of the third party as it is the agent/intermediary s responsibility to establish identity. The agent/intermediary should, however, supply the solicitor with a written assurance that it has all relevant identification material concerning the third party, and will, if requested, furnish the solicitor with a copy of all such documents. This assurance can be given separately by the agent/intermediary for a particular client or by way of a general assurance Where the agent/intermediary is from Ireland, or from a member state of the European Union or one of the countries listed in Appendix 3, but is not a designated body then, not alone must the identity of the agent/intermediary itself be established in accordance with the appropriate procedures in these Guidance Notes, but, additionally, reasonable measures must be taken to establish the identity of the party for whom the agent/intermediary acts Provided the solicitor has no reason not to be satisfied with the bona fides of the agent/intermediary, it is regarded as reasonable for a solicitor to establish identity by receiving the name of the third party from the agent/intermediary. This may only be relied upon where the agent/intermediary has supplied the solicitor with a written assurance that, in respect of all third parties for whom the agent/intermediary acts in obtaining legal services from the solicitor, the agent/intermediary will take reasonable measures to establish identity, will retain documentary evidence establishing such identity and will, forthwith upon request, furnish the solicitor with a copy of all such documents. This assurance can be given separately by the agent/intermediary for a particular client or by way of a general assurance Where the agent/intermediary does not furnish a solicitor with such assurance, or where such an assurance has previously been breached by an agent/intermediary, the solicitor must himself or herself establish the identity of the third party in accordance with the appropriate procedures in these Guidance Notes. Where the agent/intermediary is from a country other than a member state of the European Union, or one of the countries listed in Appendix 3, the solicitor must establish the identity of the intermediary and of the third party In establishing the identity of the third party it is reasonable for the solicitor to have regard to the nature of the agent/intermediary, the degree of confidence which the solicitor has in the agent/intermediary, the geographical area in which the agent/intermediary operates and the type of business being done. Depending on these factors, it may be reasonable for a solicitor to rely upon a written assurance from the agent/intermediary as provided for in paragraph Where, however, it appears that the agent/intermediary is playing little or no role beyond providing a front designed to disguise the true source of the funds, such an assurance will not be adequate and it will be necessary for the solicitor to establish the identity of the third party in accordance with the appropriate procedures in these Guidance Notes. 9

12 Trusts 3.38 In the case of trust accounts (other than clubs and societies which are dealt with in paragraph 3.30), it is prudent for a solicitor to establish the identity, not only of the trustee, but also of the beneficiaries of the trust where ascertainable and to obtain a copy of the trust deed. Corporate Entities 3.39 The establishment of the identity of clients who are not natural persons raises special problems because of the legal nature of corporate personality and the complexity of their activities and organisation structures. It is, however, generally recognised that the use of companies, even when fronted by legitimate trading companies, are the most likely vehicles for large scale money laundering. Particular care should be taken to verify the legal existence of corporates and to ensure that any person purporting to act on behalf of the company is fully authorised to do so. The principal aim here is to look behind the corporate entity to identify those who have ultimate control over the business and the company s assets, with particular attention paid to any shareholders or others who inject a significant proportion of the capital or financial support. Enquiries should be made to confirm that the company exists for a legitimate trading or economic purpose and that it is not merely a brass-plate company where the controlling principals cannot be identified. Irish Registered Companies 3.40 The following documents and information should be obtained to establish identity: - The original or a certified copy or electronic copy of the Certificate of Incorporation or the Certificate to Trade (certification by the Companies Registration Office, a solicitor or a notary public) The Memorandum and Articles of Association A list of Directors names, occupations, residential and business addresses and dates of birth If the documentation set out above is not provided or, if the solicitor is not satisfied with the copies provided, it may also be prudent to carry out a search of the file at the Companies Registration Office for the purpose of confirming that the correct date of incorporation of the company has been furnished and that the directors on file correspond to the directors furnished. If there are discrepancies or inconsistencies between the information disclosed and that which appears on file in the Companies Registration Office an explanation should be sought from the company and the explanation should be noted In the case of a company quoted on a Stock Exchange in a country which is a member of the EU or one of the other countries listed in Appendix 3 a company known to be the subsidiary of such a company a private company or unquoted public company, the majority of whose directors are already known to the solicitor the procedures in paragraph 3.40 are usually sufficient In the case of an Irish private company, the majority of whose directors are not known to the solicitor, the following additional procedures to those set out in paragraph 3.40 should be carried out: the identity of at least two directors should be established in line with paragraphs 3.14 to 3.19; and 10

13 a list of the names and addresses of shareholders holding 10% or more of the issued share capital of the company should be obtained from the company It may also be prudent to carry out a search of the company s files at the Companies Registration Office to establish if the list of shareholders given by the company corresponds with the shareholders listed on the Companies Office file. Solicitors should seek and obtain satisfactory explanations of any discrepancies or inconsistencies between the shareholder information disclosed by the search in the Companies Registration Office and that supplied by the company and the explanations should be noted Where a significant shareholder (say 25%) is a body corporate and particularly where it appears to be a nominee or front company, information should be sought from the company regarding the ultimate beneficial ownership of that particular company and the solicitor should pay particular attention to business relations and transactions with the corporate entity. Non-Irish Registered Companies 3.46 Non-Irish registered companies should be subject to the same general procedures as are outlined in paragraphs 3.40 to For non-irish registered companies which fall under the categories listed in paragraph 3.42, the procedures listed in paragraph 3.40 are usually sufficient In the case of all other non-irish registered companies, the additional procedures for verifying identity are the same as those set out in paragraphs 3.43 to Comparable documents to those required for Irish corporate clients should be obtained as far as practicable. It is recognised that company registration documentation will be different from country to country and may be difficult to obtain readily. Accordingly, assistance may be required from another solicitors firm or professional bodies in Ireland or abroad in completing those procedures. Care should be taken to ensure that the entities claiming to be subsidiaries or branches of public companies are in fact so Solicitors should exercise care in the case of bodies incorporated in countries which are neither member states of the EU nor one of the countries listed in Appendix 3 and particular attention should be given to the question of why the body concerned proposes to transact the business with an Irish solicitor. 11

14 Section 4 Record-keeping procedures 4.1 In addition to the requirement to obtain and retain records evidencing identity for a period of 5 years after the relationship with the client has ended, the Act also provides that, in the case of each transaction, the original documents or copies admissible in legal proceedings relating to the relevant transaction have to be retained for use as evidence in any investigation into money laundering for a period of at least 5 years following the execution of the transaction. Relevant transactions 4.2 The transactions covered by this requirement are as follows (Article 2a.5 of the 1991 Directive, as inserted by Article 1.2 of the 2001 Directive): buying and selling of real property or business entities; managing of client money, securities or other assets; opening or management of bank, savings or securities accounts; organisation of contributions necessary for the creation, operation or management of companies; creation, operation or management of trusts, companies or similar structures; acting on behalf of and for the client in any financial or real estate transaction. 4.3 The requirement to retain documents or copies is expressed in terms of documents or copies relating to the relevant transaction and for use as evidence in any investigation into money laundering. In this context, the record-keeping obligation relates to those documents that evidence the financial and ownership aspects of the transaction, e.g.- Copy contract or share purchase agreement in all cases, together with (if acting for vendor) copy deed/transfer/share transfer to vendor and copy deed/transfer/share transfer from vendor to purchaser, or (if acting for purchaser) copy deed/transfer/share transfer to purchaser, and copies of any apportionment and/or cash accounts and the cheque/draft or other instrument of payment Investment documents, documents relating to role of solicitor as executor Bank mandates, instructions/directions regarding ownership of funds or trust over funds Share certificates, shareholder agreements, share subscription agreements, share purchase agreements, resolutions evidencing or altering share capital Company formation documents, Memoranda & Articles of Association, Certificates of Incorporation, documents amending CRO information, Annual returns, trust deeds, wills, letters of wishes, deeds of appointment/disclaimer, deeds of family arrangements, tax returns Loan agreements or other financing agreements 4.4 This is a non-exhaustive list of relevant documents. In most circumstances, the obligation relates to those documents that are normally retained on the client s file in any case. However, solicitors should ensure to also retain copies of any other documents that evidence the financial and ownership aspects of the transactions listed at paragraph

15 4.5 Where a client asks for his or her file within five years of the execution of the transaction, a copy of the documents listed at paragraph 4.3 should be taken and retained for the remainder of the five-year period. Copies admissible in legal proceedings 4.6 The phrase copies admissible in legal proceedings is not defined in the Act. However, Part II of the Criminal Evidence Act, 1992, sets out the law in relation to the admissibility of documentary evidence. Section 5 provides that information contained in a document shall be admissible in criminal proceedings as evidence of any fact therein of which direct oral evidence would be admissible if the information was compiled in the ordinary course of a business. 4.7 The Society believes that the records required to be maintained by a solicitor under the Criminal Justice Act, 1994, can be regarded as information compiled in the ordinary course of a business. 4.8 Part II of the Criminal Evidence Act, 1992, is set out at Appendix 7 and practitioners are advised to familiarize themselves with its contents. 13

16 Section 5 Procedures for staff training and awareness Measures to prevent and detect money laundering 5.1 The Act requires solicitors to adopt measures to prevent and detect the commission of a money laundering offence (section 32(9A) of the 1994 Act). This is not optional and section 32(9B) requires that these measures shall include- Procedures to be followed by employees in the conduct of the business of the firm Giving instructions to employees on the requirements of the EU Directives and the Act Training employees so as to enable them to identify suspicious transactions, and Giving instructions to employees as to how to proceed when a suspicious transaction has been identified. 5.2 Accordingly, all employees involved in the day-to-day business of the solicitors firm should be made aware of the policies and procedures in place in their firm to prevent money laundering, including those for identification, record keeping and internal reporting and all such staff should be provided with training in the recognition of and dealing with suspicious transactions. 5.3 Solicitors should note that it is an offence under the Act to fail to introduce procedures or to train staff adequately in the prevention of money laundering. Staff Awareness 5.4 The effectiveness of the procedures and recommendations contained in these Guidance Notes depends on the extent to which staff in solicitors firms appreciate the background against which the legislation has been enacted. Relevant staff should be made aware of their statutory obligations and that they may be personally liable for failure to report information in accordance with internal procedures. All relevant staff should be encouraged to become familiar with the requirements of the Act and to provide a prompt report to the designated Money-laundering Reporting Officer (MLRO) of any suspicious transactions. 5.5 The importance of knowing your client for money laundering prevention purposes should be emphasized within firms. Staff should be made aware, not only of the need to know the true identity of the client, but also the need to know enough about the type of business activities expected in relation to that client at the outset in order to know what might constitute suspicious activity at a future date. Relevant staff should be alert to any change in the pattern of a client s transactions or circumstances that might constitute criminal activity. Education and Training Programmes 5.6 The timing and content of training of staff will need to be adapted by individual solicitors firms for their own needs. There is no standard way to conduct staff training for money laundering purposes. The training should be tailored to meet the needs of the firm, depending on the size and nature of the firm and the available time and resources. 5.7 The Law Society will provide training courses, which will be suitable for Principals, Partners, Assistant Solicitors, Compliance Officers and Money-laundering Reporting 14

17 Officers. These individuals, in turn, could provide the necessary training and information to colleagues, administrative and support staff. Some firms may decide to send all solicitors to the Law Society training courses. Others may feel that it is sufficient for one senior solicitor to be nominated as Compliance Officer to become completely au fait with the requirements and to ensure the establishment of the necessary in-house procedures and training.. The same, or another, individual should be nominated as the Money-laundering Reporting Officer (MLRO), to whom colleagues and staff would report if they encountered a suspicious transaction. The role of the MLRO is covered in detail in Section 6 of these Guidance Notes. 5.8 In terms of the level of training for different individuals within a solicitors firm, the Society would recommend the following: (a) Partners/Principals/Assistant Solicitors Partners, principals and assistant solicitors who are dealing directly with clients are the primary point of contact with potential money launderers and their efforts are therefore vital to ensure compliance with the requirements of the Act. They should receive appropriate training in the verification procedures, should be aware of their legal responsibilities and familiar with the firm s reporting system for suspicious transactions. Training should be provided on factors that may give rise to suspicions and on the procedures to be adopted when a transaction is deemed to be suspicious. If the firm does not propose to nominate a Compliance Officer and/or a Moneylaundering Reporting Officer, it would be prudent for the Principal, the Partners and Assistant Solicitors to attend training sessions organized by the Law Society. (b) Managers/Supervisors A high level of instruction covering all aspects of money laundering procedures should be provided to those with the responsibility for supervising or managing staff. This should include the offences and penalties arising from the Act for non-reporting, the internal reporting procedures and the requirements for verification of identity and the retention of records. Training could be provided internally by a Compliance Officer, MLRO or partner/principal who has attended training themselves. (c) New Employees/administrative or support staff A general appreciation of the background to money laundering, and the subsequent need for reporting of any suspicious transactions to the MLRO should be provided to all new employees and administrative or support staff who would be dealing with clients or their transactions, irrespective of the level of seniority. They should be made aware of the legal requirement to report suspicions to the MLRO, and that there is a personal statutory obligation in this respect. Training could be provided internally by a Compliance Officer, MLRO or partner/principal who has attended training themselves. (d) Compliance Officers and Money Laundering Reporting Officers If your firm decides to assign responsibility for compliance procedures to one individual and responsibility for reporting suspicious transactions to the same, or another, individual, then he/they should be provided with in-depth training concerning all aspects of the legislation and internal policies. In particular, the MLRO will require extensive initial and on-going instruction on the validation and reporting of suspicious transactions to the Garda Síochána and the Revenue Commissioners and on the feedback arrangements and new trends and patterns of criminal activity. 5.9 It is the strong recommendation of the Law Society that, at a minimum, every solicitors firm should appoint an MLRO (see paragraphs 6.6 to 6.12 below). 15

18 Section 6 Reporting Procedures/Obligations Obligation to report a suspicious transaction 6.1 Before any obligation to report a suspicious transaction arises, a number of criteria must be met: 1. The solicitor must be participating in the act of assisting the client in relation to a transaction or must be acting on behalf of the client in relation to a transaction (Article 2a.5 of 1991 Directive, as inserted by Article 1.2 of the 2001 Directive) 2. The transaction must come within the categories of specified activities (see paragraph 1.12 above) 3. There must be a suspicion that an offence of money-laundering has been or is being committed in relation to the business of the solicitor (section 57(1)). See paragraph 2.1 above for a definition of suspicion 4. The information leading to the suspicion must arise in circumstances other than the exempted areas, i.e. NOT where the solicitor is either - ascertaining the legal position for the client (see paragraph 6.2 below), or - performing the task of defending or representing the client in or concerning judicial proceedings (whether the information is received/obtained before, during or after such proceedings), or - advising that client in relation to instituting, avoiding or defending judicial proceedings (whether the information is received/obtained before, during or after such proceedings) Ascertaining the legal position 6.2 This phrase is not defined, either in the Directive or the Regulations. However, Recital 17 to the Directive indicates the legislative thinking behind the phrase, which should assist solicitors in determining their obligations. Recital 17 is quoted here in full, but particular attention should be paid to the last sentence: Where independent members of professions providing legal advice which are legally recognised and controlled, such as lawyers, are ascertaining the legal position of a client or representing a client in legal proceedings, it would not be appropriate under the directive to put these legal professionals in respect of these activities under an obligation to report suspicions of money laundering. There must be exemptions from any obligation to report information obtained before, during or after judicial proceedings, or in the course of ascertaining the legal position for a client. Thus, legal advice remains subject to the obligation of professional secrecy unless the legal counsellor is taking part in money laundering activities, the legal advice is provided for money laundering purposes, or the lawyer knows that the client is seeking legal advice for money laundering purposes. Obligation to report failure to identify clients, maintain records or provide training 6.3 Because section 32 of the Act imposes obligations on a solicitor to identify new clients, maintain records and provide training to employees, the effect of section 57(1) of the Act is to impose an obligation on solicitors/their employees to report breaches of these obligations. Internal reporting procedures 6.4 Although section 57(1) of the Act imposes an obligation on individual solicitors and their employees to report suspicions to the Garda Siochana and the Revenue 16

19 Commissioners (the obligation to report to the Revenue was introduced by the Central Bank etc Act, 2002), the Act also provides (at section 57(3)) that such reports may be made in accordance with an internal reporting procedure established by an employer for the purpose of facilitating the operation of the section. 6.5 The Society strongly recommends that every solicitors firm should establish an internal reporting procedure and appoint a senior individual to whom all solicitors and employees should make reports of any suspicions. This individual (in these Guidance Notes referred to as the Money-laundering Reporting Officer) would have the required knowledge of the legislation and training in this area to assess the situation and act accordingly. Role of the Money Laundering Reporting Officer (MLRO) 6.6 The Money Laundering Reporting Officer (MLRO) would have the responsibility in a solicitors firm for communicating reports of suspicious transactions to the Garda Síochána and the Revenue Commissioners and would provide the liaison between the solicitors firm and the Garda Síochána and the Revenue Commissioners. The person should be sufficiently senior to command the necessary authority. In a firm comprising a sole practitioner or a sole principal, the Society recommends that the sole practitioner/sole principal should themselves assume the role of MLRO. 6.7 The MLRO will have a significant degree of responsibility and should be familiar with all aspects of the legislation. Where a colleague/employee makes a report of a suspicious transaction, the MLRO will need to be satisfied that all of the criteria set out in paragraph 6.1 of these Guidance Notes have been met. He/she will then have to determine whether the information or other matters contained in the transaction report give rise to a knowledge or suspicion that a client is engaged in money laundering. 6.8 In making the latter judgement, the MLRO should consider all other relevant information available within the firm concerning the person or business to whom the initial report relates. This may include a review of other transaction patterns, the length of the relationship and referral to identification records held. If, after completing this review, the MLRO decides that all of the criteria in paragraph 6.1 have been met and that the initial report gives rise to a knowledge or suspicion of money laundering or an offence under section 32 of the Act, he/she must disclose this information to the Garda Síochána and the Revenue Commissioners. 6.9 The determination of whether or not to report to the Garda Síochána and the Revenue Commissioners implies a process with at least some formality attached to it. It does not necessarily imply that the MLRO must give reasons for negating, and therefore not reporting, any particular matter but, for best practice purposes, internal procedures should require that written reports are submitted to the MLRO and that he/she should record his/her determination in writing. Procedures for reporting suspicions to the MLRO 6.10 Reporting lines for suspicions should be as short as possible, with the minimum number of people between the person with the suspicion and the MLRO. The purpose should be to ensure speed, confidentiality and easy accessibility to the MLRO. Firms should ensure that all colleagues and other employees are aware of the reporting lines and of any changes that arise. The relevant procedures and copies of the Internal Reporting Form should be circulated to all colleagues and employees. 17

20 6.11 Colleagues may enquire or consult with each other in order to understand the nature and background to a transaction without necessarily giving rise to the need to make a report to an MLRO, unless they are not satisfied with the clarification they receive A sample Internal Reporting Form is set out at Appendix 4. Reporting suspicions to the Garda Siochana and the Revenue Commissioners 6.13 The Act does not distinguish between reports that should be made to the Garda Siochana and reports that should be made to the Revenue Commissioners. Accordingly, reports should be made to both The national reception point for reports of suspicions from MLROs is: An Garda Síochána Garda Bureau of Fraud Investigation Money Laundering Investigation Unit Harcourt Square Harcourt Street Dublin 2. Telephone: (01) ; Fax: (01) Office of the Revenue Commissioners Money Laundering Unit 5th Floor Hammam Buildings Upper O'Connell Street Dublin 1 Telephone: (01) Fax: (01) The authorities have devised a standard form for the making of suspicious transaction reports, which has been adjusted for solicitors and is contained at Appendix 5. Law Society reporting obligations 6.15 The Act also imposes a statutory obligation on the Law Society to make a report to the Garda Siochana and the Revenue Commissioners where it suspects that a solicitor has not complied with his/her obligation to identify clients, maintain records, introduce procedures to detect and prevent money-laundering, provide training to employees or report a suspicious transaction to the authorities (section 57(2)). The solicitor and his client after a report has been made 6.16 Clearly, once a solicitor makes a report to the authorities in relation to his/her client, the fundamental element of trust upon which the solicitor/client relationship is based is fatally affected. While section 58 of the 1994 Act prohibits any person who knows that a report has been made from making any disclosure which is likely to prejudice the investigation, the Society has been advised by the Minister for Justice, Equality and Law Reform, Michael McDowell SC, on the basis of advice from the Attorney General, Rory Brady SC, that this does not prohibit a solicitor from informing his or her client that he or she was ceasing to act for the client or, indeed, that he or she was ceasing to act for a client because he or she was unhappy with any transaction in which the client was involved (see Appendix 8). Accordingly, the Society recommends that a solicitor who has made a report under section 57(1) should immediately cease to act for that client and should not maintain the solicitor/client relationship for any purpose, including any purpose that might be proposed by the authorities to whom the report is made. 18

21 Appendix 1 Common indicators of potentially suspicious transactions The following are examples of common indicators that may point to a suspicious transaction. General Client does not want correspondence sent to home address. Client appears to have dealings with several solicitors in one area for no apparent reason. Client repeatedly uses an address but frequently changes the names involved. Client is accompanied and watched. Client shows uncommon curiosity about internal systems, controls and policies. Client has only vague knowledge of the amount of a deposit. Client presents confusing details about the transaction. Client over justifies or explains the transaction. Client is secretive and reluctant to meet in person. Client is nervous, not in keeping with the transaction. Client is involved in transactions that are suspicious but seems blind to being involved in money laundering activities. Client s home or business telephone number has been disconnected or there is no such number when an attempt is made to contact client. Client is involved in activity out-of-keeping for that individual or business. Client insists that a transaction be done inordinately quickly. Inconsistencies appear in the client s presentation of the transaction. Client appears to have recently established a series of new relationships with different financial entities. Client attempts to develop close rapport with staff. Client uses aliases and a variety of similar but different addresses. Client uses a PO Box or General Delivery address, instead of a street address when this is not the norm for that area. Client offers you money, gratuities or unusual favours for the provision of services that may appear unusual or suspicious. Knowledge of Reporting or Record Keeping Requirements Client attempts to convince employee not to complete any documentation required for the transaction. Client makes enquiries that would indicate a desire to avoid reporting. Client has unusual knowledge of the law in relation to suspicious transaction reporting. Client seems very conversant with money laundering issues. Client is quick to volunteer that funds are clean or not being laundered. Identity Documents Client provides doubtful or vague information. Client produces seemingly false identification or identification that appears to be counterfeited, altered or inaccurate. Client refuses to produce personal identification documents. Client only submits copies of personal identification documents. Client wants to establish identity using something other than his or her personal identification documents. 19

22 Client s supporting documentation lacks important details such as a phone number. There are inordinate delays in client presenting corporate documents. All identification presented is foreign or cannot be checked for some reason. All identification documents presented appear new or have recent issue dates. Cash Transactions Client seeks to conduct large transactions with cash. Client seeks to lodge cash or bank drafts with solicitor s client account pending decisions as to which transaction to pursue. Client starts conducting frequent cash transactions in large amounts when this has not been a normal activity for the client in the past. Client conducts a transaction for an amount that is unusual compared to amounts of past transactions. Client asks you to hold or transmit large sums of money or other assets when this type of activity is unusual for the client. There is a shared address for individuals involved in transactions, particularly when the address is also for a business location, or does not seem to correspond to the stated occupation (for example, student, unemployed, self-employed, etc.) The stated occupation of the client is not in keeping with the level or type of transaction involved. Economic Purpose Transaction seems to be inconsistent with the client s apparent financial standing or usual pattern of activities. Transaction appears to be out of the ordinary course for industry practice or does not appear to be economically viable for the client. Transaction is unnecessarily complex for its stated purpose. Activity is inconsistent with what would be expected from declared business. Transaction involves non-profit or charitable organization for which there appears to be no logical economic purpose or where there appears to be no link between the stated activity of the organization and the other parties in the transaction. Transactions Involving Areas Outside Ireland Client and other parties to the transaction have no apparent ties to Ireland. Transaction crosses many international lines. Transaction involves countries deemed by the Financial Action Task Force as requiring enhanced surveillance. Transaction involves foreign currency exchanges that are associated with subsequent wire transfers to locations of concern, such as countries known or suspected to facilitate money laundering activities. Transaction involves wire transfer of funds to or through locations of concern, such as countries known or suspected to facilitate money laundering activities. Transaction involves a country known for highly secretive banking and corporate law. Transaction involves a country where illicit drug production or exporting may be prevalent, or where there is no effective anti-money-laundering system. Transaction involve a country known or suspected to facilitate money laundering activities. Transactions Related to Offshore Business Activity Transaction involves loans secured by obligations from offshore banks. Transaction involves loans made to or from offshore companies. 20

23 Transaction involves an offshore shell bank whose name may be very similar to the name of a major legitimate institution. Transaction involves unexplained electronic funds transfers by client on an in-and-out basis. Transaction involves use of letters-of-credit and other method of trade financing to move money between countries when such trade is inconsistent with the client s business. Property transactions Client arrives at a closing with a significant amount of cash. Client purchases property in the name of a nominee such as an associate or a relative (other than a spouse). Client does not want to put his or her name on any document that would connect him or her with the property or uses different names on Offers to Purchase, closing documents and deposit receipts. Client inadequately explains the last minute substitution of the purchasing party s name. Client negotiates a purchase for market value or above asking price, but seeks to record a lower value on documents, paying the difference under the table. Client seeks to sell property below market value with an additional under the table payment. Client pays initial deposit with a cheque from a third party, other than a spouse or a parent. Client pays substantial down payment in cash and balance is financed by an unusual source or offshore bank. Client purchases personal use property under corporate veil when this type of transaction is inconsistent with the ordinary business practice of the client. Client purchases property without inspecting it. Client purchases multiple properties in a short time period, and seems to have few concerns about the location, condition, and anticipated repair costs, etc. of each property. Client pays rent or the amount of a lease in advance using a large amount of cash. 21

24 Appendix 2 Identity/Address Verification Form A: Evidence not obtained reasons:- Tick box Client was an existing client at 15 September 2003 or is personally known to solicitor. Client is a designated body or a corresponding body in the EU or country listed in Appendix 3.. Transaction is one-off or value is less than 13, B: Identification and verification evidence of name (Private Individual) Face-to-face meeting Current valid passport, or Current valid driving licence, or If none of the above is available:- Document/card issued by Government Department, or Letter/statement from person in position of responsibility Non-face to face meeting Certified copy of current valid passport, or Certified copy of current valid driving licence, or If none of the above is available, two of the following:- Copy of passport or driving licence, or Verification that living at address, or Telephone contact at home or business number, or Confirmation from employer, or Yes Yes No No C: Identification and verification evidence of address (Private Individual) Yes No Utility bill (gas, electricity, telephone etc), or Bank, building society, credit card statement, or Recent original mortgage statement, or Tax notices from Revenue, or Social welfare documents, or House/motor insurance certificates, or If none of the above is available:- Letter/statement from licensed employment agency, or Letter/statement from employer, or Document/card issued by Government Department, or Letter/statement from person in position of responsibility D: Clubs & Societies Purpose of organisation, and Identities of two elected officials Yes No 22

25 E: Partnerships Identities of two partners, and Identities of those authorised to issue instructions on its behalf F: Agents/Intermediaries Where agent is another designated body A written assurance that agent has all identification evidence required in relation to the third party and will provide copies, if required Where agent is not a designated body, but is from Ireland or EU or a country listed in Appendix 3 Identification and verification of agent under A & B, and Name of third-party, and A written assurance that agent has all identification evidence required in relation to the third party and will provide copies, if required, or identification and verification of third-party under A & B Where agent is not a designated body, is not from Ireland or EU or a country listed in Appendix 3 Identification and verification of agent under A & B, and Identification and verification of third-party under A & B G: Trusts Identification and verification of trustee, and Where ascertainable, identification and verification of beneficiaries, and Copy of trust deed obtained H: Companies Whether Irish or non-irish registered:- Original/copy Certificate of Incorporation, and Memorandum & Articles of Association, and List of Directors names, occupations, residential and business addresses and dates of birth If majority of directors not known to solicitor Identification and verification of two directors under A & B, and Names & addresses of shareholders holding at least 10% of share capital Where a significant shareholder is a body corporate Information on ultimate beneficial ownership Yes No Name of solicitor conducting identification: Date: 23

26 Appendix 3 Countries prescribed by the Minister for Justice, Equality and Law Reform as having similar money-laundering obligations All Member States of the European Union Australia Canada Channel Islands Hong Kong Iceland The Isle of Man Japan New Zealand Norway Singapore Switzerland Turkey United States of America 24

27 Appendix 4 INTERNAL MONEY LAUNDERING REPORT FORM TO: MLRO FROM: Name. Extn Section Position CLIENT: Name(s) Permanent Address.. Date of Birth... Nationality.. Occupation/Employer File reference Date business relationship commenced... Legal services previously provided INFORMATION/SUSPICION: Transaction/Instruction... Reason for suspicion (please attach copies of any relevant documents) SIGNATURE Date: MLRO USE: Date received... Time received. Ref.. Garda/revenue advised?.yes/no Date. Ref.. 25

28 Appendix 5 STANDARD REPORTING FORMAT CRIMINAL JUSTICE ACT 1994 REF NO: REF.NO: SOURCE : DATE : Disclosure By: NAME OF SOLICITORS FIRM: NAME OF REPORTING OFFICER: FIRM ADDRESS: PHONE: FAX: NAME OF CLIENT: ADDRESS OF CLIENT: DATE OF BIRTH: IDENTIFICATION AND/OR REFERENCES OTHER RELEVANT INFORMATION (if known) OCCUPATION: NATIONALITY: EMPLOYER: PASSPORT NO: DETAILS OF TRANSACTION GIVING RISE TO A SUSPICION THAT AN OFFENCE UNDER SECTION 31 OR 32 OF THE CRIMINAL JUSTICE ACT, 1994, HAS BEEN OR IS BEING COMMITTED (TO BE CONTINUED ON ADDITIONAL PAGES, IF REQUIRED) 26

29 Appendix 6 Designated bodies for the purposes of section 32 of the Criminal Justice Act, 1994 Designated bodies under the 1994 Act Banks and building societies Money brokers Life assurance companies Providers of services in futures and options exchanges An Post Credit unions A person providing a service in relation to buying and selling stocks, shares and other securities Bureaux de change Designated bodies under 1995 Regulations (1) Persons who, as a principal activity, carry out one or more of the following operations: Lending Financial Leasing Money transmission services Issuing and administering means of payment (e.g. credit cards, travellers cheques and bankers drafts) Guarantees and commitments Trading for own account or for account of customers in: (a) money market instruments (cheques, bills, etc.) (b) foreign exchange (c) financial futures and options (d) exchange and interest rate instruments (e) transferable securities Participation in share issues and the provision of services related to such issues Advice to undertakings on capital structure, industrial strategy and related question and advice and services relating to mergers and the purchase of undertakings Portfolio management and advice Safekeeping and administration of securities Safe custody services (2) An investment company authorised under the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations, 1989 (S.I. No 78 of 1989) (3) A management company of a unit trust scheme authorised under the European Communities Undertakings for Collective Investment in Transferable Securities) Regulations, 1989 (S.I. No. 78 of 1989) (4) A management company of a unit trust scheme authorised under the Unit Trusts Act, 1990 (5) An investment company authorised under Part XIII of the Companies Act, 1990 (6) A general partner of an investment limited partnership authorised under the Investment Limited Partnerships Act, 1994 (7) Any person who is an insurance broker or an insurance agent for the purposes of the Insurance Act,

30 Designated activities under 1995 Regulations The acceptance of deposits and other repayable funds from the public (S.I. No. 105 of 1995) The purchase or sale of units or shares of collective investment schemes authorised under the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations, 1989 (S.I. No. 78 of 1989), the Unit Trusts Act, 1990, Part XIII of the Companies Act, 1990, or the Investment Limited Partnerships Act, 1994 (S.I. No. 324 of 1995) Designated bodies under 2003 Regulations Any person in the State who practises as (a) an accountant on his or her own account, (b) an auctioneer, (c) an auditor, (d) an estate agent, (e) a tax advisor Any person in the State who practises as a solicitor when participating in any of the activities set out in Article 2a(5) of the Directive, namely: (a) assisting in the planning or execution of transactions for a client concerning the- (i) (ii) (iii) (iv) (v) buying and selling of real property or business entities; managing of client money, securities or other assets; opening or management of bank, savings or securities accounts; organisation of contributions necessary for the creation, operation or management of companies; creation, operation or management of trust, companies or similar structures; or (b) acting on behalf of and for a client in any financial or real estate transaction. Any person who provides money remittance services, Administration companies providing services to collective investment schemes. An investment business firm, A trustee or custodian of a collective investment scheme where it is regulated in the State, A dealer in high-value goods, including precious stones, precious metals and works of art where payment is made in cash for a sum of 15,000 or more, Casinos. 28

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